5 Years of Blogging: Highlights & Thanks

Next month (July 2017) will mark five years of writing this blog. In that time, I’ve published more than 200 articles, submissions and open letters, on a wide range of topics, from marriage equality to anti-discrimination laws and plenty in between.

 

For reasons I will explain at the end of this post, now is an appropriate time to take a quick look back on what have been some of the highlights of the past five years, as well as to express my gratitude to the support I have received during that time (and from one person in particular).

 

  1. #NoPlebiscite

 

One of the things I am proudest of was my contribution to the campaign to stop the unnecessary, wasteful & divisive plebiscite on marriage equality. While obviously the #NoPlebiscite campaign was a group effort, and I was only one of many people involved, I think I managed to play an important role – from refining the arguments against the plebiscite, to producing effective social media messaging/materials, and conducting one of the community surveys which established that the LGBTI community would rather take the risk that marriage equality might be delayed rather than accept the certainty of young and vulnerable LGBTI people being harmed.

 

For more of my thoughts on the campaign against the plebiscite, see Pride, Pressure & Perseverance.

 

  1. #ItsTimeToBind

 

Another campaign in which I played something of a leading role was the push for the Australian Labor Party to adopt a binding vote on marriage equality at its 2015 National Conference. Unlike the campaign against the plebiscite, #ItsTimeToBind was only partially successful: ALP MPs and Senators will only be bound to vote for marriage equality after the next federal election (to be held in late 2018 or early 2019).

 

Nevertheless, if there is a change of government (which seems more likely than not at this stage), this rule change means there will be no further delays on a reform that has been delayed for far too long already – a newly-elected Shorten Labor Government will be able to pass marriage equality in a matter of months.

 

For more on this campaign, see What ALP National Conference Delegates Should Hear About Marriage Equality.

 

  1. ALP National Conference 2015

 

One of the things I have tried to do with this blog – and sometimes I have done this more successfully than others – is to ensure that my LGBTI activism and advocacy is about more than just marriage equality. In the lead-up to that conference this meant pursuing a broad LGBTI agenda (see 15 LGBTI Priorities for ALP National Conference 2015), beyond simply achieving a binding vote.

 

As a result, I drafted at least 13 different amendments to the ALP Platform that were ultimately successful, helping to contribute to the most progressive major party manifesto on LGBTI issues in Australian history. This included policies on youth suicide, homelessness, homophobia, biphobia, transphobia and intersexphobia in schools, rainbow families and inter-country adoption, consideration of an LGBTI Commissioner at the Australian Human Rights Commission and the introduction of vilification protections, LGBTI inclusion in foreign aid, and three amendments on intersex issues (including an end to involuntary medical procedures).

 

Perhaps the two reforms I am most proud of were a commitment to remove out-of-pocket medical expenses for trans people, and a declaration that “Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum-seekers in countries which have criminal laws against any of communities as it makes these places unsafe environments for all of them.”

 

  1. Diversity of Issues

 

This approach – writing about a diversity of LGBTI issues – is something I have attempted to do beyond just the 2015 ALP National Conference. And, while it has been easy at different points to be distracted by the fight for marriage equality, I am happy I have managed to focus on a broad range of other topics.

 

This includes posts on everything from anti-vilification laws to the homosexual advance defence, the age of consent and expungement for historical homosexual offences, rainbow families (including adoption, assisted reproductive technology and inter-country adoption), relationship recognition, gender identity and access to legal documentation, intersex autonomy and involuntary medical procedures, and LGBTI refugees and people seeking asylum.

 

Perhaps the only high-profile issue over the past five years that I haven’t written about (both because it has been written about extensively elsewhere, and because I didn’t have much original to add) was Safe Schools. But, at the same time, I was one of only a few people to focus on the issue of LGBTI inclusion in the National (and later NSW) Health & Physical Education Curriculums.

 

  1. Focus on LGBTI Anti-Discrimination Law

 

Possibly the main issue I have written about over the past five years – and especially over the past 18 months – has been anti-discrimination law, and how well, or poorly, it protects lesbian, gay, bisexual, transgender and intersex Australians.

 

This includes a specific focus on how LGBTI anti-discrimination law interacts with, and is undermined by, special rights to discriminate given to religious organisations (aka ‘religious exceptions’). I have also written about the strengths and weaknesses of current LGBTI anti-discrimination laws at Commonwealth level, and in every state and territory, in a series called ‘What’s Wrong With…’

 

To see all of my posts on LGBTI anti-discrimination law, including the issue of religious exceptions and the ‘What’s Wrong With…’ series, see: LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions.

 

  1. The State of Homophobia, Biphobia & Transphobia Survey

 

One of the more recent highlights of this blog was The State of Homophobia, Biphobia & Transphobia survey, which I conducted at the start of 2017, the results of which I have published in a series of six posts from March to June.

 

These articles explored the discrimination experienced by (far too many) LGBTIQ Australians in terms of verbal harassment and abuse, physical abuse or violence, where discriminatory comments occur and their impact, discrimination in education, discrimination in employment, and discrimination in health, community services or aged care.

 

I encourage you to read these posts in full, including the many heartbreaking personal stories of discrimination shared by survey respondents. You can find them all here: The State of Homophobia, Biphobia & Transphobia.

 

  1. Personal Stories

 

Some of the posts that I have found the most difficult to write (particularly as someone who is generally an introvert) are the ones where the subject matter has been deeply personal. These include several articles that discuss the ongoing inability of my fiancé, Steven, and I to marry under Australian law. On the other hand, I think they are probably some of the most powerful posts I have written, because they are personal in nature. You can judge for yourself, here: Personal.

 

  1. Feedback Received

 

One of the best things about writing a blog – of putting your thoughts down in ‘black and white’, and sharing them with the world – is the feedback you receive in return. This includes the many, many comments received via social media on my posts, some of which apparently aroused strong views (both for and against), but with the vast majority generating thoughtful responses from other passionate members of the LGBTI community.

 

Having said that, two particular pieces of feedback received over the past five years stand out in my memory:

 

  • The great Martina Navratilova tweeting that my piece In search of the elusive gay or bisexual male tennis player was “very well put” (it also happens to be the most popular piece I’ve ever published, by far), and
  • A comment from inspiring ACT UP activist Peter Staley on my review of the Oscar-nominated documentary ‘How to Survive a Plague’ in which he features (the review itself was far from best thing I’ve written – but his engagement made it worthwhile).

 

Martina

 

  1. Audience Reach

 

Another satisfying part of ‘blogging’ is seeing what you’ve written reach its audience. Admittedly, writing a blog that primarily concerns itself with LGBTI law reform and policy, in Australia, is the definition of a ‘niche’ endeavour.

 

Nevertheless, over the past five years my blog has received almost 90,000 views, and (as of 11 June 2017) has been visited by people in 189 different geographic regions. In fact, there aren’t many countries where someone hasn’t clicked on something I’ve written (although I am still waiting for first-time readers from North Korea, Turkmenistan, Liechtenstein, Greenland, Cuba, French Guiana, Lesotho, the Democratic Republic of Congo and, in our own region, Samoa and the Solomon Islands).

 

Obviously, choosing to write about the things I do means it is never going to be ‘clickbait’ – but it is still pleasing to know some people have found what I’ve written to be informative, or enjoyable (or hopefully a combination of both).

 

  1. Thanks

 

Which brings me to the most important part of this post – and that is to say thanks. Thank you to you, the readers, who have clicked on, read, liked, commented on and shared the more than 200 articles, submissions and open letters I have published here.

 

I have genuinely appreciated your interest, your views (including where you thought I got something wrong) and your support. Writing this blog has been one of the most enjoyable things I’ve ever done, and being read by people who are passionate about the same things I am has definitely made it worthwhile.

 

But of course there is one person who deserves the most thanks of all – and that is my partner of almost nine years, and fiancé of more than seven, Steven. His support, encouragement, patience and, above all, belief has allowed me to devote my time and energy to this blog, and to the campaigns I have run here – I literally could not have done any of this without him. Thank you my beautiful man.

 

And that brings me to the underlying reason for this post. After almost five years of writing this blog, it is time to take a step – maybe even two – back and to focus on other things. This reflects an understandable desire to spend more of my available time with my fiancé. It also coincides with changing jobs (my new role will consume much more of my focus, especially in the next year or two).

 

At this stage, I’m still not 100% sure whether I will stop blogging completely, or whether it will simply be far less frequent (every couple of months, rather than three or four posts per month) or perhaps even about other subjects. Whatever the future holds, I’d just like to say that I hope you’ve enjoyed what I’ve written so far, and that I hope it has made a difference in some way, shape or form. Thanks very much for reading.

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What’s Wrong With the ACT Discrimination Act 1991?

This post is part of a series looking at Australia’s anti-discrimination laws, analysing them to determine how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles in the series can be found here.

In each post, the laws of each jurisdiction are assessed in relation to the following three areas:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

Based on these criteria, the Australian Capital Territory Discrimination Act 1991 (‘the Act’) was already better than average in terms of its LGBTI anti-discrimination laws. The good news is that, as a result of the passage of the Discrimination Amendment Act 2016, the ACT’s LGBTI protections have improved further.

However, as we shall see below, just because it is better than flawed schemes operating elsewhere, doesn’t mean the ACT’s law is without faults – chief among them the ongoing broad exceptions provided to religious organisations allowing them to discriminate against LGBTI people.

Nevertheless, let’s focus on the positives first:

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Protected Attributes

The ACT Discrimination Act 1991 that was in force (as of Monday 3 October 2016), includes the following as protected attributes in section 7:

7(1)(b) sexuality – which is defined in the Act’s dictionary as “heterosexuality, homosexuality (including lesbianism) or bisexuality”, and

7(1)(c) gender identity – defined as:

“(a) the identification on a genuine 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 way 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 genuine 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 way of medical intervention, style of dressing or otherwise; or

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

The terminology used in both definitions is exclusionary – although that is less important in terms of sexuality because it includes all lesbian, gay and bisexual people.

The real problem is in the definition of gender identity, which excluded non-binary trans or gender diverse people, effectively leaving them without anti-discrimination protections in the ACT.

It also appeared to make an attempt to include intersex people in part (b) of the definition (‘a person of indeterminate sex’), but does not genuinely cover intersex people being discriminated against on the basis of their intersex status.

Fortunately, both of these issues have been addressed through the Discrimination Amendment Act 2016, with provisions that commenced on 3 April 2017.

First, the definition of gender identity has been amended to the following:

“[G]ender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

Note Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past.”

Second, the list of protected attributes in section 7 has been amended to explicitly include ‘intersex status’, which is defined in the dictionary as “status as an intersex person” (although it should be noted that, in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by ‘sex characteristics’).

Consequently, while the previous Discrimination Act 1991 only protected some transgender people from discrimination, and had very limited intersex protections, the Act now provides comprehensive coverage for trans and gender diverse people, and has joined the Commonwealth, Tasmania and South Australia as the only jurisdictions that specifically protect intersex people.

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Anti-Vilification Coverage

The ACT’s vilification protections have also been improved by the commencement of provisions contained in the Discrimination Amendment Act 2016[ii].

Previously, vilification was prohibited on the basis of sexuality and gender identity (using the same exclusionary definition discussed above)[iii].

However, as with its discrimination protections, this has been expanded to include non-binary trans or gender diverse people (through an updated definition of ‘gender identity’).

It has also prohibited vilification of intersex people on the basis of their intersex status for the first time – making the ACT one of only two jurisdictions to do so, alongside Tasmania[iv].

In fact, the ACT’s LGBTI vilification protections are now the best in the country, given the offence of serious vilification, contained in section 750 of the Criminal Code 2002, applies to serious vilification on the basis of intersex status (whereas in Tasmania, while vilification against all LGBTI people is generally prohibited[v], the more serious offence of ‘inciting hatred’ only applies to ‘sexual orientation’ or ‘lawful sexual activity’[vi], and excludes both gender identity and intersex status).

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Religious Exceptions

On the basis of the above, it is clear the ACT now has close-to-best practice anti-discrimination laws in terms of their protected attributes (covering all parts of the LGBTI community) and anti-vilification coverage (again, protecting lesbian, gay, bisexual, transgender and intersex people).

Alas, the Discrimination Act 1991 falls down (from its pedestal) when it comes to religious exceptions, aka special provisions that allow religious organisations to discriminate against people on the basis of their sexual orientation, gender identity or intersex status.

The primary religious exceptions are outlined in section 32 Religious bodies, which states that:

“Part 3 [which contains the prohibitions of discrimination] does not apply in relation to-

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

(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 exercise functions for the purposes of, or in connection with, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

As has been noted in previous posts, the first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 32(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBTI employees, and LGBTI people accessing their services. This is clearly unacceptable in 2016.

Unfortunately, it gets worse. Section 33 Educational institutions conducted for religious purposes, provides religious schools with an additional right to discriminate:

“(1) Section 10 or 13 [which prohibit discrimination against applicants, employees and contract workers] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-

(a) employment as a member of the staff of an educational institution; or

(b) a position as a contract worker that involves doing work in an educational institution;

if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(2) Section 18 [which prohibits discrimination in relation to education] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

In effect, section 33 makes it lawful for religious schools to discriminate against LGBTI teachers and students, as long as the school claims such discrimination is in line with its religious (so-called) ‘values’, without even having to rely on the general religious exception established in sub-section 32(d), outlined above.

There can be no justification for such an expansive ‘freedom’ to discriminate, in an important area of public life, particularly where it has nothing whatsoever to do with that teacher’s ability to perform their role, and where it potentially denies a young LGBTI person their fundamental right to education free from prejudice.

But wait, there’s more. The Discrimination Act 1991 includes additional specific exceptions which[vii]:

  • Allow religious-operated education and health services to discriminate on the basis of religious conviction “if the duties of the employment or work involve, or would involve, the participation by the employee or worker in the teaching, observance or practice of the relevant religion”[viii] and
  • Allow religious operated education services to discriminate “on the ground of religious conviction in relation to a failure to accept a person’s application for admission as a student at an educational institution that is conducted solely for students having a religious conviction other than that of the applicant.”[ix]

These are pretty generous exceptions in and of themselves (especially allowing schools, which accept money from all taxpayers, religious and non-religious alike, the ability to reject students on the basis of their religion).

But we are left with the following questions:

  • If religious schools can already discriminate on the basis of religion in terms of appointing employees who participate “in the teaching, observance or practice of the relevant religion” under section 44, why would the school need the ability to discriminate on the basis of sexual orientation, gender identity or intersex status under either sub-section 32(d) or sub-section 33(1)?
  • Similarly, if religious schools can already discriminate on the basis of religion in terms of accepting students under section 46, why would the school need the ability to discriminate against LGBTI students under either sub-section 32(d) or sub-section 33(2)?

It is clear then that the religious exceptions offered under the ACT Discrimination Act 1991 are excessive, and encourage religious-operated schools, hospitals and community services to discriminate across a wide range of circumstances. This ‘right to discriminate’ goes far beyond what might be considered necessary to protect the freedom of people to practice their religion (which would be covered by sub-sections 32(a),(b) and(c), and potentially a narrower version of section 44).

As a result, the existing religious exceptions in the Act fundamentally undermine the right of lesbian, gay, bisexual, transgender and intersex Canberrans to go about their lives, their work, their education, and looking after their health, without having to worry about the prejudice which they might encounter – and which is currently endorsed by the ACT Government.

It must be a priority for the Barr Labor Government to repeal these overly-generous exceptions as a matter of priority.

andrewbarr

ACT Chief Minister Andrew Barr, who won re-election on 15 October 2016. It is his responsibility to repeal the excessive religious exceptions contained in the Discrimination Act 1991.

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Summary

As a result of recent amendments, the ACT Discrimination Act 1991 now protects all sections of the LGBTI community from discrimination. It also features the best anti-vilification coverage of any state, territory or federal framework in Australia.

However, these positive features are negated by religious exceptions that allow discrimination by religious organisations against LGBTI people in a wide range of circumstances, even where it has absolutely nothing to do with the appointment of religious office-holders or the observance of religious ceremonies. Unwinding these exceptions is essential to better protecting the rights of lesbian, gay, bisexual, transgender and intersex people in the ACT.

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Footnotes:

NB Footnote [i] has been deleted as a result of editing.

[ii] Noting that the ACT is already one of only four jurisdictions in the country – together with Queensland, NSW and Tasmania – that has any anti-vilification laws for any parts of the LGBTI community.

[iii] Section 67A of the Act prohibits unlawful vilification:

“(1) It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(b) gender identity…

(f) sexuality.”

[iv] Noting that the Commonwealth Sex Discrimination Act 1984 does not prohibit vilification against any section of the LGBTI community.

[v] Section 17, Tasmanian Anti-Discrimination Act 1998.

[vi] Section 19, Tasmanian Anti-Discrimination Act 1998.

[vii] Sub-section 26(1)(b) also allows discrimination in “the provision of accommodation by a religious body for members of a relevant class of people”.

[viii] Section 44, ACT Discrimination Act 1991.

[ix] Section 46, ACT Discrimination Act 1991.

No Homophobia, No Exceptions

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

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

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

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

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

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

Thanks.