Increasing LGBTI Representation

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

 

Over recent years there have been a number of legal and policy reforms that have benefitted the lesbian, gay, bisexual, transgender and intersex community (not the least of which was the passage of same-sex marriage).

 

However, many of these changes have been piecemeal in nature, and too often they have been unnecessarily compromised by limitations or religious exceptions (once again including same-sex marriage, see No, we don’t have marriage equality yet).

 

At least part of the reason for the ad hoc and incomplete nature of these reforms is the lack, or insufficient amount, of representation of the LGBTI community in decision-making.

 

For the purposes of this article, by LGBTI representation I mean:

 

  • Representation in Parliament
  • Representation in the Executive, and
  • Representation through Consultation

 

I will address each of these areas in turn.

 

bob-brown_217x200px

Australia’s first out Commonwealth representative, former Senator Bob Brown.

 

LGBTI Representation in Parliament

 

It is fair to say that there has been rapid improvement in this area in the last four years, especially in relation to Commonwealth Parliament.

 

When I wrote about this issue early last term (see LGBTI Voices Absent from the Chamber), there had still never been an out LGBTI member of the House of Representatives. Now there are five:

 

  • Trent Zimmerman, who was the first out gay man elected to the lower house in late 2015
  • Julian Hill, Trevor Evans and Tim Wilson, who were all elected at the 2016 federal election, and
  • Kerryn Phelps, who became the first out lesbian elected to the House of Representatives in late 2018.

 

These MPs have joined the four current LGBTI Senators:

 

  • Penny Wong, who was the first out lesbian elected to either chamber
  • Louise Pratt and Dean Smith, and
  • Janet Rice, who I understand was the first out bisexual elected at Commonwealth level.

 

There have also been three previous gay Senators (Bob Brown, who was the first out gay man elected to either chamber, Brian Greig and Robert Simms).

 

So, in the lead-up to the 2019 election, we now have nine LGBTI MPs and Senators, out of 226 in total, which is an encouraging start.

 

However, if one of the main benefits of having LGBTI representation in Parliament is to ensure it hears from a diversity of views, then those LGBTI representatives should themselves reflect the diversity of our community.

 

Unfortunately, at this stage that is clearly not the case. As with the Parliament more generally, LGBTI MPs and Senators have so far been predominantly cis white men.

 

There have been twice as many male LGBTI MPs and Senators as female ones (with a similar discrepancy in the NSW Parliament as well).

 

There has still never been a transgender MP or Senator in Australia, or even an MP at state or territory level (for comparison, New Zealand’s first transgender MP, Georgina Beyer, was elected almost two decades ago).

 

Despite making up a large proportion of the LGBTI community, there has only been one out bisexual MP or Senator.

 

There has also been only limited representation of queer people of colour, with Penny Wong federally, Harriet Shing in Victoria’s upper house and Chansey Paech, the first gay Indigenous MP in the Northern Territory Parliament, and

 

There has never been an out intersex MP, at Commonwealth or state and territory level, although Tony Briffa was the first intersex person elected mayor in the Western World.

 

While increasing the number of MPs and Senators who are LGBTI is important, so too is ensuring that they come from across the LGBT and I communities, so that we do not continue to have a mostly white, mostly gay male, with some lesbian and one bisexual, but not transgender or intersex, parliamentary contingent.

 

150404 Penny Wong

Australia’s first out female Commonwealth representative, Senator the Hon Penny Wong.

 

LGBTI Representation in the Executive

 

Perhaps just as important as having LGBTI voices in the Parliament, is having LGBTI representation formally embedded within the executive arm of Government.

 

The most obvious example of this would be having a formally appointed Minister for Equality, a role Martin Foley has played in the Victorian Government for more than four years.

 

There is no equivalent position within the Morrison Liberal-National Government federally, although Louise Pratt is currently the Shadow Assistant Minister for Equality in the Labor Opposition (and would presumably fulfil this role in a Shorten Government, should they be elected in May).

 

As far as I am aware, there is also no current Minister or Shadow Minister for Equality in NSW, although perhaps that is something that could change after the upcoming state election on Saturday 23 March 2019.

 

At the Commonwealth level at least there is another way in which LGBTI issues should be represented, and that is through the appointment of a standalone Commissioner for LGBTI issues within the Australian Human Rights Commission.

 

As I have written previously (see 5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform), the Commission is currently unable to adequately perform this function, with LGBTI issues forming just one part of the overall policy responsibilities of the Human Rights Commissioner, sitting alongside ‘religious freedom’ (with which it often competes for attention, sometimes unsuccessfully).

 

Fortunately, the appointment of a standalone LGBTI Commissioner within the Australian Human Rights Commission has been promised by the Shorten Labor Opposition, so this is potentially something that may change in the near future.

 

Another model of LGBTI representation that has been adopted in Victoria is a Commissioner for Gender and Sexuality within the public service, to coordinate LGBTI policy and programs across Government. This is something that again should be considered elsewhere, including at Commonwealth level and in NSW.

 

Any Minister for Equality and/or public service LGBTI Commissioner should also be supported by an office for equality within a central agency, preferably the Department of Prime Minister and Cabinet, and its respective state and territory equivalents.

 

Adopting any of the above formalised representation structures within executive government (and preferably all of them), will hopefully ensure that LGBTI issues are adequately considered by Governments of all persuasions.

 

LGBTI Representation through Consultation

 

The third and final means of LGBTI representation is no less important than the first two – and that is ensuring Government hears from lesbian, gay, bisexual, transgender and intersex communities themselves about the issues that affect them.

 

While this happens occasionally now (with Governments consulting directly with a few key groups on select policy proposals) what is needed is an ongoing, formalised structure whereby LGBTI organisations, and individuals with relevant expertise, are appointed to panels to represent the views of the LGBTI communities to decision-makers on a consistent basis.

 

Given the impact of justice, health and education laws and policies on LGBTI communities, especially at state and territory level, I would suggest (at least) three standing committees on each of these respective portfolio areas, and in other areas on an ‘as needed’ basis.

 

There are of course risks to this model, including that panel members do not accurately, or adequately, reflect the views of the communities they are supposed to represent.

 

These risks can be minimised by ensuring there are open application processes, and that applicants demonstrate how they propose to reflect the opinions of the LGBTI community in performing their role. Consideration could also be given to term limits to ensure appointees are not ‘captured’ by the bureaucratic process, thereby reducing their effectiveness in advocating to Government.

 

Ultimately, if LGBTI representation can be increased in Parliament, the Executive and through Consultation, we will see better decision-making by Governments on LGBTI issues, for the benefit of the entire community.

 

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What’s Wrong With the Victorian Equal Opportunity Act 2010?

This post is part of a series looking at Australia’s Commonwealth, state and territory anti-discrimination laws analysing how well – or in some cases, how poorly – they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification (other posts in the series can be found here).

Each post examines that jurisdiction’s LGBTI anti-discrimination laws, focusing on three main areas:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

Unfortunately, as we shall see below, Victoria’s Equal Opportunity Act 2010 has serious deficiencies on all three fronts. It is time for the Parliament to act to ensure LGBTI Victorians enjoy adequate protections against homophobic, biphobic, transphobic and intersexphobic discrimination and vilification.

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Protected Attributes

Victoria’s first anti-discrimination protections for lesbian, gay and bisexual people were introduced in 1995. However, rather than protecting people from discrimination on the basis of sexual orientation or homosexuality and bisexuality, the Act instead covered ‘lawful sexual activity’.

This protected attribute was defined as “engaging in, not engaging in or refusing to engage in a lawful sexual activity”[i] and, with its focus on behaviour rather than identity, it is questionable how effective these protections were in practice.

Fortunately, as the name suggests, the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 introduced ‘sexual orientation’ as a protected attribute, defined as “homosexuality (including lesbianism), bisexuality or heterosexuality.”[ii]

While the language used may not be the same that would be used today[iii], it is clear that lesbian, gay and bisexual Victorians are all covered by the Equal Opportunity Act 2010.

The same amending legislation in 2000 also introduced anti-discrimination protections for transgender Victorians for the first time.

This is because it introduced ‘gender identity’ as a protected attribute, with the following definition (that remains in place today):

gender identity means-

(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of the other sex; or

(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)-

(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of that sex.”[iv]

Paragraph (a) of this definition applies to transgender people, although, given its focus on ‘binary’ genders, it would appear to only cover those people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not appear to cover people with non-binary gender identities.

The definition in the Victorian Equal Opportunity Act 2010 is therefore no longer best practice, and a new, more inclusive definition of gender identity should be adopted[v] to ensure all transgender people benefit from anti-discrimination protection.

Intersex Victorians are even worse off when it comes to current state anti-discrimination legislation. Paragraph (b) of the definition of gender identity, above, offers their only protection under Victorian law, and it is problematic because:

  • It inappropriately conflates intersex status, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

In order to remedy this situation, a stand-alone protected attribute of ‘sex characteristics’ should be added to the Act, based on the call by intersex activists in the March 2017 Darlington Statement[vi].

Summary: Lesbian, gay and bisexual Victorians are covered by the Equal Opportunity Act 2010, although some transgender people are likely to fall outside the current binary definition of gender identity. Likewise, many people with intersex variations living within Victoria are unlikely to be covered by the protections offered under the existing Act. Therefore, a more inclusive definition of gender identity should be adopted, alongside a new, stand-alone protected attribute of sex characteristics.

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Religious Exceptions

The religious exceptions contained in Victoria’s Equal Opportunity Act 2010, are, to put it bluntly, outrageous. They are so broad, and so generous, that they substantially, and substantively, undermine laws that are supposed to redress discrimination against LGBTI people (amongst other groups).

While the exceptions for religious bodies[vii] contained in subsection 82(1)[viii] appear largely innocuous, relating to the appointment or training of religious ministers and the selection of people to perform religious services, it is only downhill from there.

For example, subsection 82(2) states that:

“Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

Essentially, as long as a religious organisation can show that discriminating against LGBTI people is related to their religion, they have carte blanche to do so in areas where it would be otherwise unlawful.

And, lest there be any doubt that these provisions cover religious schools – allowing them to discriminate against LGBTI teachers and students – section 83 reinforces the ‘right’ to discriminate on these grounds:

83 Religious schools

(1) This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

(2) Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

The Victorian Equal Opportunity Act 2010 even includes a somewhat unusual, ‘special right’ for individuals to discriminate against other individuals:

84 Religious beliefs or principles

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.”[ix]

Tasmania is the only other jurisdiction to include a similar ‘individual’ right to discriminate, although it only allows discrimination on the basis of religion – and not on the basis of sexual orientation, gender identity or intersex status.

Perhaps the most disappointing aspect of these exceptions is that the most recent changes in this area took the law backwards.

In 2010, the then Labor Government introduced amendments to both the general religious exception, and the specific religious schools exception, so that, in order to discriminate in employment the religious body or school would first need to show that:

“(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that he or she does not meet that inherent requirement.”[x]

However, before this ‘inherent requirement’ test could even take effect, the newly-elected Liberal-National Government repealed these provisions in 2011, effectively restoring the previous broad and generous exceptions.

Not only are groups like the Australian Christian Lobby, Christian Schools Australia and the Catholic Education Office all (predictably and) vehemently opposed to limiting what is in practice an almost unfettered right to discriminate against LGBTI employees[xi], the history of recent adoption equality legislation also shows just how committed the Liberal and National parties are to protecting this so-called ‘right’.

For those who may be unaware, as part of the long overdue introduction of equal adoption rights for same-sex couples in Victoria[xii], the Andrews Labor Government proposed that religious agencies providing adoption services should not be allowed to discriminate against LGBT people. The amendment sought to add a new subsection (3) to section 82 of the Act:

“Despite subsection (2), Part 4 applies to anything done by a religious body that is an approved agency within the meaning of the Adoption Act 1984 in relation to its exercise of any power or performance of any function or duty under that Act for or with respect to adoption, whether or not the power, function or duty relates to a service for a child within the meaning of that Act or for any other purpose.”

Unfortunately, the Liberal and National parties combined with some cross-bench MPs to defeat this amendment, meaning that, while the right of same-sex couples to adopt has now finally been passed, adoption services operated by religious organisations will continue to have the ‘right’ to turn those same couples away.

Undeterred by this setback, in the second half of 2016 the Andrews Labor Government attempted to implement its election commitment by reintroducing the inherent requirements test for anti-LGBT discrimination in employment via the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

Yet again, however, the Liberal and National parties used their numbers in the Legislative Council to block this modest reform, meaning LGBT teachers at religious schools, and employees at other religious organisations, can still be discriminated against simply because of who they are, and even where this discrimination has nothing whatsoever to do with the actual role they are performing.

With the Andrews Labor Government re-elected on 24 November 2018, and a potentially more supportive Legislative Council, it is now up to Minister for Equality Martin Foley MP and his Government to push for broader reforms than simply re-instaing the ‘inherent requirement’ test for employment to considering how best to prohibit discrimination against LGBTI people accessing services.

Ultimately, of course, there is a need to remove all religious exceptions outside those required for the training and appointment of religious ministers, and for the conduct of religious ceremonies.

Summary: The religious exceptions contained in the Victorian Equal Opportunity Act 2010 are overly broad, too generous, and – frankly – outrageous. Current provisions give religious bodies and religious schools wide powers to discriminate both against LGBTI employees and against LGBTI people accessing their services.

The Labor Government is to be commended for attempting to reinstate the ‘inherent requirement’ test for discrimination in employment, and to remove exceptions for religious adoption agencies – but now, following their re-election, they must go further and, at the very least, remove exceptions which allow religious schools to discriminate against LGBT students, teachers and other staff.

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Anti-Vilification Coverage

This section will be the shortest of the post – because, unlike NSW, Queensland, Tasmania and the ACT, there are no anti-vilification laws covering any parts of the LGBTI community.

Given the similar absence of LGBTI anti-vilifications provisions under Commonwealth law, this means Victoria’s lesbian, gay, bisexual, transgender and intersex community do not have any recourse to legislative anti-vilification protection.

There are, however, protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.[xiii]

With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.

Summary: There is currently no anti-vilification coverage for LGBTI people under Victorian law. However, given there are existing protections against racial and religious vilification, LGBTI anti-vilification laws should be introduced, too.

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In conclusion, it is clear there is plenty wrong with the Victorian Equal Opportunity Act 2010 – from the need to update the definition of gender identity, and to introduce a new protected attribute covering sex characteristics, to reforming the overly-generous religious exceptions contained in the Act, and to ensuring LGBTI Victorians have equivalent access to anti-vilification protections as those based on race and religion. Which means there is plenty of work for the Government, and Parliament, to do.

 

160117 Martin Foley

Victorian Minister for Equality, Martin Foley MP.

 

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Footnotes:

[i] This definition remains in subsection 4(1) of the Equal Opportunity Act 2010.

[ii] Subsection 4(1), Equal Opportunity Act 2010.

[iii] For example, the Commonwealth Sex Discrimination Act 1984, which was amended in 2013, defines ‘sexual orientation’ as “a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[iv] Subsection 4(1), Equal Opportunity Act 2010.

[v] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.” [Although obviously exact wording should be agreed with Victoria’s transgender community.]

[vi] While the inclusion of ‘intersex status’ in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was seen as world leading at the time, intersex activists now prefer the terminology ‘sex characteristics’ be used as a protected attribute.

[Again, the final wording of the new definition would need to be agreed in consultation with Victoria’s intersex community.]

[vii] Defined in section 81 as “(a) a body established for a religious purpose; or (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.”

[viii] Subsection (82)(1) “Nothing in Part 4 applies to-

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

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ix] Not only is it unclear why this section is necessary (given the protections contained in Part 4 only apply in specific areas of public life, such as employment, education, the provision of goods and services and accommodation, rather than establishing a general right to non-discrimination), it is also concerning that this ‘special right’ extends to unincorporated associations (because ‘person’ is defined in subsection 4(1) of the Equal Opportunity Act as “person includes an unincorporated association and, in relation to a natural person, means a person of any age.”)

[x] The same wording was used in both subsections 82(3) and 83(3) of the then Equal Opportunity Act 2010.

[xi] “Religious groups hit out at Labor’s move to rewrite state’s equal opportunity laws”, The Age, 8 December 2014.

[xii] As passed in the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015.

[xiii] Section 7 prohibits racial vilification while section 8 prohibits religious vilification: Racial and Religious Tolerance Act 2001.