Tag Archives: non-binary

Submission to Consultation on Proposals for a First Nations Voice

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30 April 2021

Submitted online

I am writing to express my personal support for the Uluru Statement from the Heart, which was a generous invitation by First Nations people to non-Indigenous Australians to walk together ‘in a movement of the Australian people for a better future.’

This includes whole-heartedly endorsing the three key elements of the Uluru Statement:

  • Voice
  • Treaty, and 
  • Truth.

As the Statement itself outlines, the first element – a First Nations Voice – must be ‘enshrined in the Constitution’.

Constitutional enshrinement is essential to ensure the independence of the Voice, and protect it against political intervention by the Government of the day, something which has unfortunately occurred in relation to past Aboriginal and Torres Strait Islander bodies.

Constitutional enshrinement will also provide the Voice with stability, as it would not be able to be abolished through the passage of simple legislation, as happened with the Aboriginal and Torres Strait Islander Commission (ATSIC).

I therefore urge the Commonwealth Government to honour its election commitment to hold a referendum to establish the Voice once the model has been settled.

The referendum process itself has the opportunity to be a unifying moment, as a step along the long journey of genuine Reconciliation.

A successful referendum, with what I would hope would be a large majority of Australians voting in favour, would also provide the Voice with additional authority and legitimacy as it fulfils its Constitutional responsibilities.

Holding a referendum in the near future would also take advantage of what I believe is growing momentum towards embracing the Uluru Statement from the Heart and the opportunity for substantive progress which it presents.

On the other hand, I strongly oppose the creation of a Voice via legislation prior to such a referendum. 

This approach – ‘legislation first, referendum later’ – is weak for the same reasons a ‘referendum first’ approach is strong.

‘Legislation first, referendum later’ means the Voice would lack true autonomy in its formative years, at the very time it would need to be establishing its credibility with First Nations people.

It would operate under the constant threat of being abolished, just like its predecessors, while delays to any referendum could squander the community goodwill which has been built in support of the Uluru Statement.

All of that is before considering the real possibility of the current, or a future, Government walking away from their commitment to hold a referendum at a later date.

The order of events to create the Voice must therefore be a constitutional referendum first, followed by the passage of enabling legislation.

The above position reflects the first two ‘key messages’ of the Indigenous Law Centre at the University of NSW, and the Uluru Dialogue.[i]

I also endorse their third ‘key message’:

‘The membership model for the National Voice must ensure previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures.’

In relation to this principle, I would like to make a comment about one of the proposed elements of a First Nations Voice as highlighted in the Indigenous Voice Co-design Interim Report, provided to Government in October 2020 and underpinning the current consultation.

Specifically, Chapter Two of that Report proposes two options for the Voice on page 37:

Option 1 – equal representation (preferred option), which features 18 members with ‘two members of different gender for each state, territory and Torres Strait Islands’, and

Option 2 – scaled representation, which features 16 members with ‘two members of different gender for each state and the Northern Territory’ and ‘one member each for the ACT and Torres Strait Islands with a member of a different gender selected following each completed term…’

The discussion on page 38, under the heading ‘Gender representation’, then states:

‘The National Co-design Group agreed unanimously to the importance of gender balance. All options reflect the principle that there must be a requirement for balanced representation of different genders in the National Voice membership.’

In response, I begin by welcoming the use of the term ‘different gender’ rather than the exclusionary phrase ‘opposite sex’ in these options.

I obviously also support efforts to ensure the National Voice is not male-dominated, and certainly not in the same way that Commonwealth Parliament currently is.

Despite this, I question how these options would operate in practice, especially the requirement there ‘must’ be ‘gender balance’ (with some of the materials supporting the current consultation describing this as ‘guaranteed gender balance’).

In particular, how does such a requirement apply with respect to non-binary people or other First Nations people with gender identities that are not male or female?

I suspect most people reading the Interim Report and associated consultation materials would interpret proposals for two members per jurisdiction being of different genders, reinforced by an overall requirement for gender balance, as involving one female and one male member in each state or territory.

However, that outcome would mean non-binary First Nations people may be prohibited from serving on the National Voice (which is contrary to a goal of ‘ensuring previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures’).

On the other hand, if non-binary people are allowed to serve as members of the National Voice, this may result in the numbers of male and female members being different or unequal, and not satisfy some people’s notions of ‘gender balance’.

I raise this issue as a long-term advocate for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

Nevertheless, I am conscious that I am not Indigenous, and believe that the core features of the Voice, including criteria for membership of the National Voice, are matters for First Nations people. 

In this context, I am not proposing a solution to this issue (concerning requirements for gender balance and their potential adverse impact on non-binary and other gender diverse First Nations people), merely bringing it to the attention of those responsible for this consultation and suggesting that it be considered further.

Thank you in advance for taking this submission into consideration.

Sincerely

Alastair Lawrie

The Uluru Statement from the Heart.

Footnotes:

[i] 1. The government must honour its election commitment to a referendum once a model for the Voice has been settled.

2. Enabling legislation for the Voice must be passed after a referendum has been held in the next term of Parliament.

Not all pregnant people are women. The law should reflect that.

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Submission re Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020

Director, Law Enforcement and Crime

NSW Department of Communities and Justice

GPO Box 31

Sydney NSW 2001

via policy@justice.nsw.gov.au

29 January 2021

To whom it may concern

Not all pregnant people are women.

That fact may be disappointing, even alarming, to some people – including a certain (in)famous children’s author.

But to ignore it is to deny reality, and live in a world that is no less fantasy than the stories in that author’s books.

The law should reflect reality rather than fantasy.

Unfortunately, the Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not adequately engage with the real world in 2021.

Instead, it consistently refers to the people it intends to protect as pregnant women, including in the primary provision which establishes circumstances of aggravation under the Crimes Act 1900 (NSW), with proposed sub-section 9(1) stating:

‘It is a circumstance of aggravation for an offence against this Act (the relevant offence) if-

(a) the relevant offence is committed against a pregnant woman, and

(b) the act of omission that constitutes the relevant offence causes the destruction of the foetus of the woman.’

This creates at least three potential problems in relation to non-binary people, and trans men, in NSW[i] who are currently or will in the future become pregnant.

First, some people may attempt to argue this wording would therefore mean such aggravation does not apply in relation to the destruction of a foetus of a non-binary person or trans man who was pregnant.

This problem is likely the easiest to overcome, with sub-section 8(1) of the Interpretation Act 1987 (NSW) providing that ‘[i]n any Act or instrument- a word or expression that indicates one or more particular genders shall be taken to indicate every other gender.’

In this situation, woman may consequently be interpreted by courts to also include non-binary people and trans men – although I would appreciate confirmation from the Department of Communities and Justice that this interpretation is correct, and that the foetuses of non-binary people and trans men are not considered less important than the foetuses of women under this proposed law.

The second problem is more difficult to overcome, and that is because the repeated use of the phrase pregnant women – without explicit recognition of the pregnancies of other people – itself reinforces the invisibilisation and marginalisation of those people.

Non-binary people and trans men who are or will in the future become pregnant will see a law that does not include them in its text.

This problem is also very easy to overcome, provided there is sufficient parliamentary support to treat all people equally under the law. That is to simply replace the phrase pregnant woman with pregnant person, both in the title of the legislation and throughout.

The third problem is one that will be created by the Bill for the future.

At some point – whether this year, this term, or later this decade – NSW will hopefully join the majority of Australian jurisdictions in allowing trans and gender diverse people to amend their birth certificates without requiring surgery or other invasive medical procedures beforehand.[ii]

That change would ensure the Births, Deaths and Marriages Registration Act 1995 (NSW) accepts the existence of all trans and gender diverse people, and therefore of non-binary people and trans men who can become pregnant.

When that reform is finally passed, the already strong case to amend the phrase pregnant woman to pregnant person in the current Bill will become overwhelming.

In my view, it makes absolutely no sense to introduce flawed legislation today knowing both that it does not reflect lived experience now and that it will need to be changed in the not-too-distant future.

I should note at this point that, if the provisions of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 were already part of existing law, this would not be the highest priority for reform.

It is clearly far less important than amendments to the Births, Deaths and Marriages Registration Act itself, to grant trans and gender diverse people in NSW the right of self-determination over their own gender identity.

And it is far less urgent than stopping the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which would erase a generation of trans and gender diverse students in classrooms across the state.[iii]

Nevertheless, that still does not justify the introduction of a new law that simply entrenches old mistakes, especially when those mistakes can be so easily avoided by substituting one word.

Finally, I have written the above submission as an advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. I am also someone who supports the right to choose for people who are pregnant.

I have taken at face value the statements on the Department of Communities and Justice website, and in the Premier and Attorney General’s media release of 10 November 2020,[iv] advising that ‘[t]he proposed amendments do not affect existing laws on abortion.’

If those statements are not accurate, then I defer to the expertise of reproductive rights organisations and support any amendments which are necessary to protect the hard-fought, and hard-won, right to reproductive choice in NSW.

In conclusion, I would like to reiterate my original point – that the law should reflect reality, not fantasy.

In the real world, there are already, and will be in the future, non-binary people and trans men who are pregnant. The wording of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not reflect this reality. It should be changed.

Thank you for the opportunity to make a submission on this draft legislation. Please do not hesitate to contact me at the details provided should you require further information.

Sincerely

Alastair Lawrie

Footnotes:

[i] This includes people who have updated their identity documentation to reflect their gender identity in Australian jurisdictions which do not require surgery or other invasive medical procedures beforehand. Of course, it also includes many people in NSW who are currently unable to do so because of the inappropriate and unjustified restrictions in section 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). However, despite what that law may say, in reality – in their day-to-day lives – these people are not women.

[ii] For more on this issue, see: Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

[iii] For more on the serious problems created by that legislation, see: I Stand With Trans Kids, and Against Mark Latham.

[iv] ‘Recognising pregnancies lost to criminal acts’.

Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination

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The Sydney Gay & Lesbian Mardi Gras Parade is on tonight, and I am looking forward to attending the festivities in Taylor Square.

Although it will likely be in less noteworthy company than last year when, through an unlikely combination of circumstances, I ended up watching most of the parade standing next to NSW Premier Gladys Berejiklian.

Always the activist, and never one to waste an opportunity, I did manage to ask her an LGBTI rights question during the event. The question I chose:

Are you aware that NSW is the only jurisdiction in Australia that does not protect bisexuals against discrimination?

The Premier answered that ‘no, she wasn’t aware of that’ (or words to that effect) before turning back to talk to her companions.

In her defence, she would not have been alone in not knowing about this bizarre, and unacceptable, loophole in the NSW Anti-Discrimination Act 1977 (although she definitely cannot claim ignorance now).

It is a gap that has existed from the time discrimination on the basis of homosexuality was prohibited in late 1982 (a full 18 months before male homosexuality was even decriminalised in this state).

And one that wasn’t fixed when a definition of ‘homosexual’ was inserted in section 4 of the Anti-Discrimination Act in 1994: ‘homosexual means male or female homosexual’.

This is the definition that remains to this day. Which quite clearly excludes people whose sexual orientation is towards people of the same sex and people of different sexes. [Interestingly, it also prevents heterosexual people from enjoying protection under the Act].

As I stated in my question to Ms Berejiklian, NSW is alone in having such a narrow definition.

The Commonwealth prohibits discrimination on the basis of ‘sexual orientation’ in the Sex Discrimination Act 1984, with a definition that clearly covers lesbian, gay, bisexual and heterosexual people.

Victoria, Western Australia, South Australia and Tasmania all also prohibit discrimination on the basis of ‘sexual orientation’, while Queensland the Australian Capital Territory and the Northern Territory cover ‘sexuality’ [for more, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws].

What does NSW’s exclusion of bisexuals mean in a practical sense?

Well, on the positive side, because bisexuals are still protected under the Commonwealth Sex Discrimination Act, discrimination against them in NSW remains prohibited in most (although not all) circumstances.

However, there are limits to this coverage – limits that do not apply to lesbians and gay men.

For example, section 13 of the Sex Discrimination Act provides that protections against discrimination in employment under that Act ‘do not apply in relation to employment by an instrumentality of a State.’

Instrumentalities are independent government agencies or corporations. In effect, bisexual employees of independent NSW Government agencies are not protected against discrimination during their employment.[i] Ironically, this means bisexual employees of Anti-Discrimination NSW itself are potentially not protected.

Another practical effect of the exclusion of bisexuals from the NSW Anti-Discrimination Act 1977 is that they are not covered by civil prohibitions on vilification, unlike their gay and lesbian counterparts.

For example, section 49ZT of the Act defines homosexual vilification as ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person of group of persons on the ground of the homosexuality of the person of members of the group.’

Because there is also no prohibition against anti-LGBTI vilification at Commonwealth level, this means bisexual people cannot make a civil complaint of vilification in any circumstance.

Confusingly, bisexual people are protected by the 2018 amendments to the Crimes Act 1900 (NSW), with section 93Z(1)(c) criminalising:

‘a public act [that] intentionally or recklessly threatens or incites violence towards another person or a group of persons on [the ground of] the sexual orientation of the other person or one or more of the members of the group.’

Sexual orientation is then broadly defined in section 93Z(5) 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.’

Which is obviously welcome, but invites the logical question that, if the NSW Government was willing to include ‘sexual orientation’ in the Crimes Act, why hasn’t it also updated the NSW Anti-Discrimination Act along the same, inclusive, lines?

The third practical effect of the general exclusion of bisexuals from the NSW Anti-Discrimination Act is that it limits their options in terms of where to lodge complaints and/or file lawsuits.

Whereas lesbians and gay men discriminated against in NSW have the ability to complain to either Anti-Discrimination NSW or the Australian Human Rights Commission (AHRC) – and therefore of pursuing legal action in either the NSW Civil and Administrative Tribunal (NCAT) or multiple courts – bisexuals can only complain to the AHRC and can only file in court.

This has implications in terms of the timelines for lodging complaints, the allocation of costs and the potential award of damages.

Each of these practical effects should be sufficient in and of itself to convince the NSW Government to update the Anti-Discrimination Act 1977, and replace ‘homosexuality’ with ‘sexual orientation’.

But, as with most anti-discrimination laws, the symbolic effect is just as important. After all, what does it say about the place of bisexuals in our own community, and society more widely, that they continue to be excluded from the primary legislation in this state which is designed to ensure all people are treated equally?

Unfortunately, it is not just bisexuals who are excluded in this way either.

The NSW Anti-Discrimination Act 1977 also excludes non-binary people, because the definition of transgender in section 38A only covers someone who ‘identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or who has identified as a member of the opposite sex by living as a member of the opposite sex’.

Similarly, the Act also fails to provide discrimination protections to intersex people, because it does not include a protected attribute of either ‘sex characteristics’ (the terminology preferred by Intersex Human Rights Australia) or ‘intersex status’ (the protected attribute in the Commonwealth Sex Discrimination Act 1984).

Although, unlike for bisexuality, NSW is far from alone in these deficiencies:

  • NSW, Victoria, Queensland, Western Australia and the Northern Territory all fail to protect non-binary people, and
  • Those same jurisdictions (NSW, Victoria, Queensland, WA and the NT) also exclude intersex people from their discrimination frameworks.

There is a long, long way to go before Australian anti-discrimination laws adequately and appropriately protect LGBTI Australians against discrimination.

The NSW Anti-Discrimination Act 1977 arguably has the longest journey ahead.[ii] Let’s hope Premier Berejiklian hears that message loud and clear at tonight’s Mardi Gras – and every parade until this exclusionary and out-dated law is fixed.

Bi Pride

This article is part of a series. Find other ‘Did You Know?’ posts here.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] To complicate matters, bisexual employees of NSW Government agencies are protected against unlawful termination, because section 772 of the Fair Work Act 2009 (Cth) applies. However, the adverse action protections in section 351 of that Act (which prohibit mistreatment during employment) don’t apply because they must also be prohibited by an equivalent Commonwealth, state and territory anti-discrimination law – which is not the case here.

[ii] For more problems see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

23 LGBTI Issues for the 2019 NSW Election

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The 2019 NSW election will be held on Saturday March 23.

It will determine who holds Government until March 2023.

Therefore, with just over a month to go, here are 23 LGBTI issues that parties and candidates should address.

 

  1. Provide anti-discrimination protection to bisexual people

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that does not cover bisexual people. This should be amended as a matter of urgency, by adopting the Sex Discrimination Act 1984 (Cth) definition of sexual orientation.[i]

 

  1. Provide anti-discrimination protection to non-binary trans people

The NSW Anti-Discrimination Act 1977 also fails to protect non-binary trans people against mistreatment, because its definition of transgender is out-dated. This definition should be updated, possibly using the Sex Discrimination Act definition of gender identity, to ensure it covers all trans and gender diverse people.

 

  1. Provide anti-discrimination protection to intersex people

The NSW Anti-Discrimination Act 1977 does not have a stand-alone protected attribute covering people born with intersex variations. It should be amended as a matter of urgency by adopting the Yogyakarta Principles Plus 10 definition of sex characteristics: ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

  1. Remove the special privileges that allow private schools and colleges to discriminate against LG&T students and teachers

The NSW Anti-Discrimination Act 1977 is the only LGBTI anti-discrimination law in Australia that allows all privates schools and colleges, religious and non-religious alike, to discriminate on the basis of homosexuality and transgender status.[ii] These special privileges must be repealed, so that all LGBTI students, teachers and staff are protected against discrimination no matter which school or college they attend.

 

  1. Remove the general exception that allows religious organisations to discriminate in employment and service delivery

Section 56(d) of the NSW Anti-Discrimination Act 1977 provides that its protections do not apply to any ‘act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religions susceptibilities of the adherents of that religion.’ This incredibly broad exception allows wide-ranging discrimination against lesbian, gay and trans people. This provision should be replaced by the best-practice approach to religious exceptions in Tasmania’s Anti-Discrimination Act 1998.

 

  1. Remove the special privilege that allows religious adoption agencies to discriminate against LG&T prospective parents

Section 59A of the NSW Anti-Discrimination Act 1977 allows religious adoption agencies to discriminate against prospective parents on the basis of homosexuality and transgender status. This special privilege should be repealed, because the ability of an individual or couple to provide a loving and nurturing environment for a child has nothing whatsoever to do with their sexual orientation or gender identity.

 

  1. Reform commercial surrogacy laws

Under the NSW Surrogacy Act 2010, it is illegal to enter into commercial surrogacy arrangements, either within NSW or elsewhere (including overseas), punishable by up to two years’ imprisonment. Despite this prohibition, people in NSW (including many same-sex male couples) continue to enter into international surrogacy arrangements. It is clearly not in the best interests of children born through such arrangements for either or both of their parents to be subject to criminal penalties. NSW should either legalise and appropriately regulate commercial surrogacy domestically, or remove the prohibition on international surrogacy.[iii]

 

  1. Recognise multi-parent families

Modern families continue to evolve, particularly in terms of the number of parents who may be involved in a child’s upbringing, and especially within rainbow families (for example, with male donors playing an increasingly active role in the lives of children born with female co-parents). This growing complexity should be recognised under the law, including the option of recording more than two parents on official documentation.

 

  1. Modernise the relationships register

The NSW relationships register may have declined in salience, especially within the LGBTI community, following the passage of same-sex marriage in December 2017. However, it remains an important option for couples to legally prove their relationship, especially for those who do not wish to marry (for whatever reason). However, the NSW Relationships Register Act 2010 requires modernisation, including by amending the term ‘registered relationship’ to ‘civil partnership’, and by allowing couples to hold a ceremony if they so choose.[iv]

 

  1. Remove surgical and medical requirements for trans access to identity documentation

Another law requiring modernisation is the NSW Births, Deaths and Marriages Registration Act 1995, which currently provides that, in order to record a change of sex, a person must first have undergone a sex affirmation procedure. This is completely inappropriate, especially because many trans and gender diverse people either do not want to, or cannot (often for financial reasons), undergo surgery. Gender identity should be based on exactly that, identity, with this law amended to allow documentation to be updated on the basis of statutory declaration only, without medical practitioners acting as gate-keepers.[v] The range of identities that are recorded should also be expanded, and this should be done in consultation with the trans and gender diverse community.

 

  1. Ban unnecessary and involuntary medical treatment of intersex children

One of the worst human rights abuses perpetrated against any LGBTI community in Australia is the ongoing involuntary medical treatment of intersex children, which often includes unnecessary surgical modification to sex characteristics. Despite a 2013 Senate report recommending action to end these harmful practices, nothing has been done, including in NSW. With a new review being undertaken by the Australian Human Rights Commission,[vi] whoever is elected in March must take concrete steps to ban non-consensual, medically unnecessary modifications of sex characteristics as soon as possible. In doing so, they should consult with Intersex Human Rights Australia and other intersex organisations, and be guided by the Darlington Statement.

 

  1. Ban gay and trans conversion therapy

Another abhorrent practice that should be banned immediately is gay or trans conversion therapy, which is not therapy but is psychological abuse. Thankfully, this problem has received increased attention over the past 12 months, including a focus on the need for multi-faceted strategies to address this issue. However, a key part of any response must be the criminalisation of medical practitioners or other organisations offering ‘ex-gay’ or ‘ex-trans’ therapy, with increased penalties where the victims of these practices are minors.[vii]

 

  1. Establish a Royal Commission into gay and trans hate crimes

In late 2018, the NSW Parliament commenced an inquiry into hate crimes committed against the gay and trans communities between 1970 and 2010. This inquiry handed down an interim report in late February, recommending that it be re-established after the election. However, in my view a parliamentary inquiry is insufficient to properly investigate this issue, including both the extent of these crimes, and the failures of NSW Police to properly investigate them. Any new Government should establish a Royal Commission to thoroughly examine this issue.[viii]

 

  1. Re-introduce Safe Schools

The Safe Schools program is an effective, evidence-based and age-appropriate initiative to help reduce bullying against lesbian, gay, bisexual, transgender and intersex students. Unfortunately, following a vitriolic homophobic and transphobic public campaign against it, the NSW Government axed Safe Schools in mid-2017. In its place is a generic anti-bullying program that does not adequately address the factors that contribute to anti-LGBTI bullying. The Safe Schools program should be re-introduced to ensure every student can learn and grow in a safe environment.[ix]

 

  1. Include LGBTI content in the PDHPE Syllabus

The NSW Personal Development, Health and Physical Education (PDHPE) curriculum does not require schools to teach what lesbian, gay, bisexual, transgender or intersex mean, or even that they exist. The new K-10 Syllabus, gradually implemented from the beginning of 2019, excludes LGBTI students and content that is relevant to their needs. It is also manifestly inadequate in terms of sexual health education, with minimal information about sexually transmissible infections and HIV. The Syllabus requires an urgent redraft to ensure LGBTI content is adequately covered.[x]

 

  1. Expand efforts to end HIV

NSW has made significant progress in recent years to reduce new HIV transmissions, with increased testing, greater access to pre-exposure prophylaxis (PrEP) and higher treatment rates. However, new HIV diagnoses among overseas-born men who have sex with men are increasing. The NSW Government should create an affordability access scheme for people who are Medicare-ineligible that covers PrEP and HIV treatments (including for foreign students). The introduction of mandatory testing of people whose bodily fluids come into contact with police (aka ‘spitting laws’)[xi] should also be opposed.[xii]

 

  1. Appoint a Minister for Equality

Both the NSW Government and Opposition currently have spokespeople with responsibility for women, ageing and multiculturalism. However, neither side has allocated a portfolio for equality. Whoever is elected on 23 March should appoint a Minister for Equality so that LGBTI issues finally have a seat at the Cabinet table.[xiii]

 

  1. Establish an LGBTI Commissioner

The Victorian Government does have a Minister for Equality (the Hon Martin Foley MP). They have also appointed a Gender and Sexuality Commissioner (Ro Allen) whose role it is to co-ordinate LGBTI initiatives at a bureaucratic level. A new Government in NSW should also appoint an LGBTI Commissioner here.

 

  1. Create an Office for Equality

While having leadership positions like a Minister for Equality and an LGBTI Commissioner are important, the work that is done by an Office for Equality within a central agency (like the Equality Branch within the Victorian Department of Premier and Cabinet) is essential to support LGBTI policies and programs across Government.

 

  1. Convene LGBTI education, health and justice working groups

The NSW Government should establish formal consultative committees across (at least) these three policy areas to ensure that the voices of LGBTI communities are heard on a consistent, rather than ad hoc, basis.

 

  1. Fund an LGBTI Pride Centre

Another initiative that is worth ‘borrowing’ from south of the NSW border is the creation of a Pride Centre, to house key LGBTI community organisations, potentially including a permanent LGBTI history museum. This centre would need to be developed in close partnership with LGBTI groups, with major decisions made by the community itself.

 

  1. Provide funding for LGBTI community organisations

There is significant unmet need across NSW’s LGBTI communities, which should be addressed through increased funding for community advocacy, and service-delivery, organisations, with a focus on intersex, trans and bi groups, and Aboriginal and Torres Strait Islander LGBTI bodies. This should also include funding for LGBTI services focusing on youth, ageing, mental health, drug and alcohol, and family and partner violence issues, and to meet the needs of LGBTI people from culturally and linguistically diverse and refugee backgrounds.

 

  1. Develop and implement an LGBTI Strategy

If, in reading this long list, it seems that NSW has a long way left to go on LGBTI issues, well that’s because it’s true. The birthplace of the Sydney Gay & Lesbian Mardi Gras parade has fallen behind other states and territories when it comes to LGBTI-specific policies and programs. We need a whole-of-government strategy, including clear goals and transparent reporting against them, to help drive LGBTI inclusion forward.

 

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References:

[i] For a comparison of Australian anti-discrimination laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] Sections 38C, 38K, 49ZH and 49ZO. For more, see: What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] For more, see: Submissions to Commonwealth Parliamentary Inquiry into Surrogacy.

[iv] For more, see: Submission to Review of NSW Relationships Register Act 2010.

[v] For more, see: Identity, not Surgery.

[vi] My submission to the AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics can be found here.

[vii] For more, see: Criminalising Ex-Gay Therapy.

[viii] For more, see: Submission to NSW Parliamentary Inquiry into Gay and Trans Hate Crimes.

[ix] For more, see: Saving Safe Schools.

[x] For more, see: Invisibility in the Curriculum.

[xi] For more, see: Submission re Mandatory BBV Testing Options Paper.

[xii] For more HIV-related policy priorities, see ACON, Positive Life NSW, SWOP and the NSW GLRL ‘2019 NSW State Elections Issues’ document.

[xiii] For more, see: Increasing LGBTI Representation.

Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

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Update 5 March 2019:

 

The Law Reform Commission of Western Australia has handed down its final report of its Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics (a copy of the report is available here).

 

It is generally well-considered, and largely positive for the trans, gender diverse and (in parts at least) intersex communities.

 

This includes Recommendation 1 that “The Equal Opportunity Act 1984 (WA) be amended to include protections against discrimination based on gender identity and intersex status” (although the latter protected attribute should instead be ‘sex characteristics’ in line with the Yogyakarta Principles plus 10).

 

There are also a range of recommendations that clarify the difference between sex and gender (and which one should be recorded in different contexts).

 

The most controversial recommendations (albeit ones I support) are:

 

Recommendation 5

Sex classification be removed from birth certificates

 

Recommendation 6

The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriages Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.

 

This would then be replaced by an opt-in system of ‘Gender Identity Certificates’ for situations where gender may be relevant:

 

Recommendation 7

The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an application process for a person born in Western Australia to apply for a Gender Identity Certificate (with Recommendation 8 covering people born outside WA).

 

Importantly, under Recommendation 9, the gender markers included in these certificates would be expanded to include male, female and non-binary (although it does not include an ‘other’ category, as suggested in my submission to the Review, published below).

 

The WALRC further recommends that there no longer be any surgical or medical barriers for people to update their Gender Identity Certificate, instead proposing a simple administrative process, which, if introduced, would be best practice in Australia (for a comparison with existing laws around Australia, see Identity, not Surgery).

 

That phrase – if introduced – is key. Unfortunately, I understand that the WA Government has already shied away from the removal of sex and/or gender from birth certificates which, if true, would obviously be incredibly disappointing.

 

Trans, gender diverse and intersex people deserve better than to have a progressive Law Reform Commission of Western Australia report languish, unimplemented, on the shelves. Let’s hope the WA Government remembers why it commissioned this review in the first place.

 

Original submission:

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

 

Friday 19 October 2018

 

To whom it may concern

 

Submission in relation to recognition of a person’s sex, change of sex or intersex status

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

 

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

 

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

 

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

 

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

 

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

 

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

 

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

 

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

 

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

 

Question 3. Should sex classification be mandatory on birth certificates?

 

No.

 

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

 

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

 

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

 

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

 

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

 

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

 

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

 

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

 

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

 

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

 

Not applicable.

 

Other comments on the proposed model

 

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

 

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

 

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

 

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

 

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

 

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

 

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

 

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

 

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

 

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

 

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

 

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

 

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

 

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

 

Other issues

 

I welcome the comments by the Commission, on page 77, that:

 

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

 

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

 

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

 

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

 

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

 

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

 

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

 

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

 

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

 

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

 

Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.

 

Sincerely

Alastair Lawrie

 

What’s Wrong With the Queensland Anti-Discrimination Act 1991?

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This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other posts in the series can be found here.

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

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

Contrary to what some might expect, Queensland’s laws are at least ‘average’, and in some cases, particularly in relation to anti-vilification laws, ‘better than average’, across these three areas. Unfortunately, that says more about the major flaws that exist across most anti-discrimination laws in Australia than it necessarily does about the Anti-Discrimination Act 1991 (‘the Act’) itself.

There are still significant problems that must be addressed with this legislation, beginning with the issue of who is – and isn’t – covered.

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Protected Attributes

Like most of its counterparts in other states, Queensland’s Anti-Discrimination Act does not protect all parts of the LGBTI community from discrimination.

On the positive side, it does cover all lesbian, gay and bisexual people – with discrimination on the basis of ‘sexuality’ prohibited in section 7 of the Act (defined as “sexuality means heterosexuality, homosexuality or bisexuality” in the Dictionary found in the Schedule).

On the less positive side, it only covers some transgender people, and not others. That is because, while section 7 also includes ‘gender identity’, the Act’s definition of this term is out-dated:

“gender identity, in relation to a person, means that the person-

(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

(b) is of indeterminate sex and seeks to live as a member of a particular sex.”

While this does protect transgender people who were previously identified as male but now identify as female (and vice-versa), it does not include non-binary trans people. In order to rectify this situation, the Act’s definition of gender identity should be updated to reflect the definition used in the Commonwealth Sex Discrimination Act 1984[i].

Even worse off than transgender Queenslanders, however, are people with intersex variations – while part (b) of the definition of ‘gender identity’ may apply to some intersex people in limited circumstances, there is no stand-alone protected attribute for intersex people and therefore no clear-cut protection against discrimination for them.

Again, this could be rectified with the introduction of ‘sex characteristics’ as a protected attribute in the legislation[ii].

Overall: While the Queensland Anti-Discrimination Act 1991 does protect lesbian, gay and bisexual people, and some transgender people, from discrimination, it leaves other trans people (especially those whose identity is non-binary) and most intersex people out in the cold. This should be fixed as a matter of priority, by updating the definition of gender identity, and adding sex characteristics as a protected attribute.

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Religious Exceptions

Queensland has adopted a unique approach to religious exceptions through the Anti-Discrimination Act 1991, in which case I will spend more time than normal discussing this element.

The primary religious exception is found in section 109:

“Religious bodies

(1) The Act does not apply in relation to-

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

(b) the training or education of 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; or

(d) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –

(i) in accordance with the doctrine of the religion concerned; and

(ii) necessary to avoid offending the religious sensitivities of people of the religion.

(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area.”

The first three sub-sections ((a), (b) and (c)) are at least concerned with the appointment of ministers of religion, or the conduct of religious celebrations, and are therefore more likely to be excusable on the basis of protecting ‘religious freedom’.

Unfortunately, the wording used in sub-section (d) – “in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion” – is incredibly broad, and permits discrimination against a wide range of people in terms of service delivery.

However, sub-section (2) is unusual and, as far as I can tell, not replicated in any other state or territory legislation. In essence, it provides that religious bodies cannot discriminate against employees unless their role is directly connected with ‘religious observance or practice’. It also means religious schools cannot discriminate against students on the basis of their sexuality or gender identity[iii].

If section 109 was the only source of religious exceptions in the legislation, Queensland’s Act would almost be assessed as positive. However, there are other sections that complicate this assessment.

Chief among them is section 25:

“Genuine occupational requirements

(1) A person may impose genuine occupational requirements for a position.

Examples of genuine requirements for a position-

…Example 4-

Employing persons of a particular religion to teach in a school established for students of the particular religion

(2) Subsection (3) applies in relation to-

(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes; or

(b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs.

(3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

Example for paragraph (a)

A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.

(4) Subsection (3) does not authorise the seeking of information contrary to section 124[iv].

(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-

(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;

(b) the consequences for both the person and the employer should the discrimination happen or not happen.

(6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment.

(7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way.

(8) In this section-

religion includes religious affiliation, beliefs and activities.”

That is obviously a lot to take in. So here are my three key observations:

  • This section expands the religious exceptions offered under section 109, so that religious bodies can discriminate on the basis of sexuality and gender identity against teachers and other staff in schools generally, but against employees in other religious organisations only “if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs”.
  • In both cases this is limited by a potentially vague ‘reasonableness test’ (determining “whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions”), and
  • In both cases it is also limited by a ‘Don’t Ask, Don’t Tell’ clause – discrimination is only permitted where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs” and the religious school or body cannot ask about sexuality or gender identity. This would therefore protect teachers or other staff who did not discuss their sexual orientation at their school or workplace[v].

Of course, as even the US Government and Military has eventually been forced to concede, ‘Don’t Ask, Don’t Tell’ is a terrible policy, ‘invisibilising’ LGBT people in the workplace, forcing them to deny who they are and silencing them in everyday conversations (for example, gay teachers would not be able to openly acknowledge their partners at all in the classroom or even in the staffroom). It also exposes LGBT employees to potential harassment and bullying.

‘Don’t Ask, Don’t Tell’ is also a terrible policy with respect to LGBT students, because it denies them visible role models to look up to, or from whom to seek relevant information.

But, and here is the extraordinary part, these exceptions – allowing religious schools and other bodies to discriminate against ‘out’ lesbian, gay, bisexual and transgender employees – are actually the third-best religious exceptions in Australia (behind only Tasmania and recently-passed ACT laws), because they don’t allow these organisations to explicitly deny employment solely on the basis of sexuality or gender identity.

The other, much more unambiguously positive part of the Act’s religious exceptions is that section 25 does not apply to students – which means that, while a religious school can reject students who are not from a particular religion, they cannot reject students on the basis of their sexuality or gender identity.

Overall: Queensland’s approach to religious exceptions is unique, and its protection of LGBT students against discrimination is to be welcomed. However, other parts of the Anti-Discrimination Act 1991 provide overly-generous rights to religious schools and other bodies to discriminate against LGBT employees, and people accessing services, and these should be significantly curtailed.

Specifically, subsection 109(1)(d), which allows discrimination on the basis of sexuality and gender identity in relation to service-provision, should be repealed.

And, while the limitations on discrimination in relation to employment (including a ‘reasonableness test’ and a ‘Don’t Ask, Don’t Tell’ clause) might mean Queensland’s legislation is better than most, permitting discrimination in such circumstances is still unacceptable in the 21st century, meaning section 25 should ultimately also be abolished.

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Anti-Vilification Coverage

Queensland is one of only four Australian jurisdictions to provide anti-vilification protections to LGBT people – the others being NSW, the ACT and Tasmania (noting that Commonwealth anti-vilification law only applies to race).

Unlike NSW, the Queensland Anti-Discrimination Act treats all types of prohibited vilification exactly the same – establishing vilification on the basis of race, religion, sexuality and gender identity in the same section (124A)[vi], and creating the offence of serious racial, religious, sexuality or gender identity vilification in another (section 131A).

The same penalties apply irrespective of attribute (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”).

Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of sex characteristics, not all parts of Queensland’s LGBTI community are currently protected against vilification – although this could be rectified at the same time as the protected attributes, described earlier.

One other, relatively minor, fault that should also be corrected is that, while the offences themselves cover sexuality and gender identity alongside race and religion, the titles of the relevant Parts or Chapters do not (“Part 4 Racial and religious vilification” and “Chapter 5A Serious racial and religious vilification”).

This obviously does not impact on the substantive rights involved. However, it may be misleading to a casual reader of the legislation, and in some cases may cause people to mistakenly believe that they are not protected against vilification. As a result, it would be preferable if these titles were renamed to be genuinely inclusive.

Overall: Queensland’s anti-vilification protections are comparatively strong, but could be further strengthened by updating the definition of gender identity, adding sex characteristics, and ensuring that the titles of relevant Parts/Chapters are inclusive and not potentially misleading.

**********

Other Issues

There are two additional serious problems with the Anti-Discrimination Act 1991, and it would be negligent to conclude this analysis without addressing them.

The first is the truly awful subsection 28(1), which states:

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity[vii] or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having full regard to all the relevant circumstances of the case, including the person’s actions.”

This is genuinely appalling – the very law that is supposed to protect transgender people against discrimination implies that trans employees may be unsuitable to work with children, and could even be a threat to the ‘physical, psychological or emotional wellbeing of minors’.

There was never a time that such a prejudiced subsection would have been acceptable, and it most definitely is not today – there is no excuse for the Palaszczuk Labor Government to leave this provision in place today.

The second additional flaw is found in section 45A, which states that the protection against discrimination in goods and services, located in section 46, “does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.”

Again, there can be no justification for such discrimination against lesbian, gay and bisexual people in terms of their access to in-vitro fertilisation, artificial insemination or gamete, zygote or embryo transfer. This section must also be repealed as part of the overall much-needed updating of the Queensland Anti-Discrimination Act 1991.

Annastacia Palaszczuk

Premier Annastacia Palaszczuk needs to raise the standard of the ‘so-so’ Queensland Anti-Discrimination Act 1991 before the State election due on 31 October 2020.

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Footnotes:

[i] Defined in section 4 of that Act as “gender identity means the gender-related identity, appearance or mannerism 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.”

[ii] In March 2017, intersex activists issued the Darlington Statement, which called for this terminology (sex characteristics) to be used instead of the protected attribute of ‘intersex status’, which is found in the Commonwealth Sex Discrimination Act 1984.

[iii] Although section 42 does allow religious schools to discriminate against “applicants who are not of the particular sex or religion”. A similar provision allows religious boarding schools to discriminate on the basis of sex or religion as well (section 89).

[iv] “124 Unnecessary information

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.”

[v] Without looking at relevant case law, it is unclear how well, or poorly, the ‘Don’t Ask, Don’t Tell’ approach serves transgender people in the workplace.

[vi] “Section 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

(2) Section (1) does not make unlawful-

(a) the publication of a fair report of a public act mentioned in subsection (1); or

(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

[vii] The Act defines lawful sexual activity as “means a person’s status as a lawfully employed sex worker, whether or not self-employed”.