The longest five years

[Content warning: homophobia; violence; suicidal ideation]

 

Those eyelashes.

He had beautiful blue eyes, scruffy blond hair and a mischievous smile, but it’s his eyelashes I remember most more than a quarter of a century later.

The day before, my Mum had driven me the eight hours from the farm west of Rockhampton where I was raised, to this boarding school in Brisbane’s inner-west. The day after I would start year 8, and what would be the longest five years of my life.

But that January afternoon, as the new boarders got to know each other down at the pool, I was transfixed by his eyelashes, droplets of water on them glistening in the Queensland summer sun.

That moment crystallised the feelings of difference that had slowly accumulated over the previous few years. At 10 and 11, I had grown increasingly bewildered as the other boys and girls at Blackwater primary began to express interest in each other.

At 12, in this unfamiliar environment, a long, long way from home, I finally understood why.

I liked boys.

 

**********

 

It took me another month or so to learn the right language to describe who I was. But I realised quickly afterwards that being gay was unlikely to be welcomed. Not by my National Party-voting parents (my Dad had actually nominated for federal pre-selection the year before). Not by my classmates. And definitely not by my school.

This was 1991. Homosexuality in Queensland had only just been decriminalised – and even then, the Parliament had imposed an unequal age of consent for anal intercourse (to ‘protect’ boys from being recruited to the homosexual lifestyle), something that would not be repealed until 2016.

Social attitudes were changing, but at a glacial pace. Many parts of the state were still firmly stuck in the Joh Bjelke-Petersen era. My school was one of them.

Based on the Lutheran faith, it enforced both religious indoctrination, and homophobia, with steely German efficiency.

We had chapel five times a week (Mondays, Tuesdays, Thursdays, Fridays, and an hour-plus every Sunday), and bible studies another two or three times.

The school rules, which were printed in the student diary, were based on supposedly ‘christian’ principles, and included the statement that homosexuality would not be tolerated because it was not in accordance with god’s will.

The sex education that was provided was a superficial, hetero-normative joke. While the jokes made by my classmates, often within earshot of unresponsive staff, were frequently homophobic.

If I was going to survive here, I would have to suppress my burgeoning same-sex attraction with all my might.

 

**********

 

It is hard, even now, especially now, to find the words to describe the utter loneliness of what followed.

Being surrounded 24/7 by 180 other boys, at a school of 1600 students overall, but having absolutely no-one to talk to, or confide in.

Needless to say there were no ‘out’ role models to look up to.

So, I quickly cut myself off, socially and emotionally, rather than risk the ostracism – or worse – of letting slip my secret.

Looking back, it was probably the only rational course of action. But it would slowly erode, and corrode, my self-esteem.

 

**********

 

I became so withdrawn that the rest of year 8, and most of year 9, was a numb blur.

As an academic child – some (well, if I’m being honest, most) might say nerd – I concentrated on my schoolwork.

The only snippets I learnt about what it meant to be gay came from pop-culture.

Sneaking peaks at Outrage magazine at the newsagent between school and the local shopping centre.

Scanning newspapers for any gay references I could find. One article about homosexuality from The Australian, back when it actually did journalism, sticks out in my mind, at least in part because of the scantily clad male torso it featured.

Trying to stay up late in the dorm to watch Sex with Sophie Lee, and Melrose Place featuring Matt the (largely-sexless) gay social worker.

Not exactly the most well-rounded education on ‘gayness’, but I devoured any morsel I could get.

 

**********

 

My clearest memory of year 9 came one evening during our allocated study period, during which each boarding house year group was supervised by a year 12 student.

This particular night our allocated ‘senior’ was joined by his twin brother and their friend, and they proceeded to discuss, in front of us, what they had got up to during the previous weekend.

On the Saturday night they and some others had apparently gone to a major bridge in Brisbane, found a toilet block where ‘faggots’ (their word, not mine) congregated, and ‘rolled’ them.

They were confessing to gay-bashing. Except this was no ordinary confession. They were smiling. Joking. Laughing. They were bragging.

Long before the term ‘toxic masculinity’ was popularised, I was learning what it meant, face-to-face.

I could not be 100 per cent certain whether what they were saying was true, or just teenage ‘bravado’ (even if it was the opposite of real bravery).

But I was now absolutely sure of one thing. Being gay at this school would not just lead to social exclusion, and possible expulsion. Being gay here was physically dangerous too.

I retreated even further into my closet. It became my whole world.

 

**********

 

Unsurprisingly, denying who I was, and isolating myself from my surrounds, was profoundly damaging to my mental health.

I suffered what I would later understand was major depression.

By the second term of year 8, I was already contemplating what seemed like the only way out: ending my life.

At first these thoughts came weekly. Then every few days.

By the start of year 10, I was thinking of killing myself upwards of a dozen times every 24 hours.

There wasn’t a day from then until after I finished year 12 that I didn’t think of committing suicide.

 

**********

 

Amidst the gloom, year 10 provided the one enjoyable term of my entire five-year stint of boarding school.

That was an eight-week ‘outdoor education’ program, where each class of about 30 lived in spartan accommodation in the hills north of Toowoomba.

By spartan, I really mean it. No flushing toilets. No running water full stop. To have a hot shower you had to build the fire, and boil the water, yourself. And after all that it only lasted for a total of about 30 seconds.

Still, there was something enjoyable about having no classes, and being immersed in an environment where kids could just be kids for a bit. I finally managed to make a few friends, mostly among the female students, something that would come in handy during the remaining two and a half years of hell in that school.

 

**********

 

Even out there, however, we couldn’t fully escape the religious inculcation the school was so expert in. We still had group daily prayer. And church every Sunday.

As part of its stereotypically ‘protestant’ emphasis on self-reliance, towards the end of the eight weeks we were also made to do a 24- or 48-hour ‘solo’, where we were left in the middle of the bush, with little other than a flashlight and a bible for company.

So I read it, cover to cover, in the desperate hope I might find something in there to help me overcome my predicament.

Which began a period of about 6 months where I would engage in an individual nightly prayer, wishing I would wake up as something other than myself. Each morning I was profoundly disappointed.

I was more lost than ever.

 

**********

 

The nadir of this search for ‘redemption’ came late in year 10, when I sought the assistance of one of the pastors to be baptised.

For a couple of months that involved spending an hour each week with him, discussing faith and what it meant to me.

We didn’t discuss homosexuality. I wasn’t going to raise it, and he certainly didn’t ask.

But it must been have clear to this kind old man (and that is still how I remember him) that the young boy in front of him was drowning.

If it was, then he himself was too far out of his depth to help.

My strongest memory of that entire process was sitting in his office, listening to – but not really hearing – his words, as it felt like my whole body dissolved into the couch, until I wasn’t there anymore.

It was clear that religion was not going to be my life-raft.

 

**********

 

Perhaps surprisingly, by year 11, things had slowly started to improve.

The friendships I had made with a few of the female day students strengthened. Even if I felt I couldn’t disclose my secret to them, just having someone, anyone, to talk to, even about random, meaningless stuff, made the days seem not so long, and the nights not quite so terrifyingly alone.

I was also learning more about this whole ‘gay’ thing.

One of the advantages of being a nerd meant I was free to visit, unsupervised, the University of Queensland Social Sciences Library, ostensibly to undertake research for my school assessments. In fact, I was becoming closely acquainted with the work of Alfred Kinsey and his ‘Sexual Behaviour in the Human Male’.

I surreptitiously picked up a few copies of Brother-Sister (the 90s, Brisbane equivalent of the Star Observer), reading them cover-to-cover and then throwing them away before heading back to campus.

It was reassuring to know that a gay world did exist out there, somewhere – a suburb, and a galaxy, removed from where I was.

Pop-culture was also steadily expanding its, and my, gayze. Tales of the City (the TV series) was an eye-opener, with its heady depiction of gay life in 70s San Francisco. It even made being gay look like it could be fun.

And I distinctly recall the moment I first saw the photos of Ian Roberts in Blue Magazine (images that were committed to memory for several years after that).

Life in the dorms even got slightly easier with the installation of shower curtains. Which, unless you’ve lived in a boarding house, may not seem like a big deal, but finally provided enough privacy to do what teenage boys do… A lot…

It felt like the invisible but ever-present weight I had been carrying was slowly lifting. There was much less ‘praying the gay away’, replaced with the almost imperceptibly small beginnings of self-acceptance.

 

**********

 

Any progress I had made was stopped in its tracks by a moment of brutality.

Well, two moments.

Physically, I had matured faster than some of my peers, and at 15 had a nascent patch of hair on my chest (which, I’ll be honest, I was a little bit chuffed about).

One evening early in year 11, after study a group of about half-a-dozen boys from my year ambushed me between two buildings, pinned me down and removed my shirt.

I struggled to break free, but there were too many of them.

I called out for help, which was then muffled by one of their hands across my mouth.

No-one came.

I didn’t comprehend what was going on, until one of them took out a razor and shaved my chest.

I think the whole thing was all over in about three minutes.

Looking back, I don’t know how but I somehow managed to compartmentalise this un-provoked attack. Pretending it didn’t mean anything. That it was ‘just’ some harmless hazing. That this kind of thing happened to everyone. Didn’t it?

Perversely, the dissociation of more than three years in the closet helped me to detach myself from this incident.

I tried to move on. I was even partially successful. Until it happened again.

 

**********

 

The second assault, towards the end of year 11, was much, much worse.

The modus operandi was similar – the shaving of my by-then slightly thicker thatch.

There were more people involved, this time at least a dozen, maybe 15 (including, sadly, my year 8 crush, the one with those ‘eyelashes’).

It happened in the dorm cubicle I shared with three other students, on the floor right next to my bed, stripping away any sense of safety it had previously provided.

The fact they came prepared with shaving cream, in addition to a razor, revealed just how pre-meditated it was.

I didn’t struggle. Or call out for help. The first attack had shown there was no point.

In fact, what sticks with me is just how quiet it was.

The sound of squeaky sneakers on the wooden floor. The whirr of the shaving cream. That’s all.

They didn’t even need to talk to each other. They knew what they were doing, having taken the school’s German efficiency and applied it to brutalising another student.

This was an act of dominance, and humiliation. I was confronted by my sheer powerlessness in comparison.

But the biggest psychological damage was inflicted by its mere repetition.

This was not, could not, be written off as simple ‘hazing’, lazily picking on outward physical difference.

Even if they didn’t express it – and I couldn’t say the words out loud – I knew they had worked out I was different in an inward, and far more significant way.

They were going to make me pay for it. I did. They had broken me.

 

**********

 

I didn’t report them. How could I? They constituted about a third of all the year 11 students in the boarding house. The popular boys. The rugby players. People who I continued to share a ‘home’ with, and see every morning, afternoon and evening of every single day.

I knew, without qualification, that if I complained, and any of them (or all of them) were punished as a result, the following 12 months would be living hell. The violence wouldn’t stop; it would escalate.

So I lowered my head.

I did confide in a couple of my female friends, Jo and Cindy. Who were rightly horrified and who, unbeknownst to me, reported the second incident to the school.

The school’s response was, to put it mildly, shocking.

They knew what had happened. And they knew exactly who had been involved. Nevertheless, they refused to take action unless I made a formal complaint – something which they must also have realised I couldn’t do, based on an entirely legitimate fear for my own safety.

We reached a stand-off.

The boarding house’s improvised approach was to take me out of study one night, and sit me alone on an uncomfortable chair in a fluorescently-lit corridor. They forced all of the boys who had been involved (thus conceding they knew exactly who did it) to come and apologise to me, one after another.

I don’t remember much of that experience. I certainly don’t recall any genuine contrition on their parts for the actual attack. Although I do remember several of them thanking me for not ‘dobbing’, and others apologising to me because they incorrectly thought that I had complained but now knew I hadn’t. Such were the warped moral priorities of the teenage male boarding student.

 

**********

 

About a week after those ‘nonpologies’, the school announced the student body leaders for the following year.

One of the boys who had assaulted me was named school captain.

Another was made head boarder.

If that wasn’t enough of a sick joke, because of my grades I was also named a prefect – and so would have to spend even more time alongside them.

 

**********

 

The icing on the cake of that almost unbelievably horrible year came a couple of weeks later.

As was the style at the time – but probably also as a reaction to what had happened to me – I had clippered my hair in a buzz cut.

Sitting in the back row of my Economics class, the teacher, who was also the ‘dean of student welfare’ for year 11, joked to the class, “didn’t you get enough of having your hair shaved in the boarding house, Alastair?”

 

**********

 

It was clear the school would never give a shit about me.

After four years in the closet, and beatings both physical and psychological, I barely cared about myself.

Which meant that year 12, for me, was simply a battle for survival.

The lowest point arrived in chapel one morning when, in front of years 11 and 12, a new pastor gave a sermon about a teenager from his previous parish.

The boy had come to see him, ‘confused’ about life and his place in it. The pastor claimed he had tried to help, but the boy ultimately took his life.

The pastor described how he was now in a better place, in a way that suggested this was not the worst thing the boy could have done in those circumstances.

That pastor had effectively ‘dog-whistled’ his insidious homophobia to a room full of 600 impressionable 15, 16 and 17 year-olds, intimating that they should consider killing themselves if they were confused.

Fortunately, my contrarian nature meant my immediate reaction was to think, “fuck you, I won’t do what you tell me”. It was possibly even the first day I believed I might eventually outlive that school.

But I often think about how the other 40 or 50 queer kids who were in chapel that morning reacted to his hate.

 

**********

 

The highest point of senior year came one August afternoon, as I sat in the office of my favourite English teacher, and the dean of student welfare for year 12, crying.

Yes, crying. Why was that a highlight? Because I had just committed the ultimate act of defiance in a school that was intent on erasing any student who happened to be gay or lesbian.

I had come out.

It almost goes without saying that it was the most difficult thing I had ever done. I was so emotionally spent afterwards that, even though Gayle was supportive (and wanted to help me attend a support group outside of school), I did not have sufficient energy left to take the next step. Or any steps.

Indeed, it would be another two years before I told another soul.

But it was enough that someone finally knew my secret.

It was also a pre-emptive act of remembrance. If I took my life in the weeks or months that followed, someone would know why. And they might be able to address the set of circumstances that contributed to it.

 

**********

 

The final term of year 12 was like the home straight of a marathon, as I limped and staggered towards the end. I literally had nothing left of myself to give.

Even my grades started to suffer (although I suspect Gayle encouraged some of the other teachers to give me special consideration).

But as I fell through the finish line tape, and started to maybe hope that the future could have something, anything, better to offer than the previous five years had mercilessly dispensed, the school had one last insult to add to my many injuries.

At the conclusion of each year in the boarding house, the senior students handed out ‘awards’ to the year 8, 9, 10 and 11 kids, while the year 11 students were given responsibility to dole out awards to the seniors.

Mine? In front of the entire boarding house, including staff, I had to walk up and collect the ‘Big Fat Poof’ award.

None of the staff intervened. All of the other kids laughed.

Those students had found the language to describe what the year 11s the year before – my classmates – had suspected. They saw right through me.

It almost seems appropriate my time at that wretched institution ended in one final act of humiliation before I walked out of its unwelcoming gates.

 

**********

 

A couple of days after final exams, my Dad drove me that same eight hour-trip back to my childhood farm in Central Queensland for the final time.

Sitting in the passenger seat, I was, in many ways, the same kid I had been five years prior. My physical age might have been 17, but emotionally I was only 12; specifically, that 12 year-old boy transfixed by those eyelashes, experiencing the exciting and confusing first throes of a teenage crush.

Except those subsequent years had stripped away any optimism I might have once held about the future, as my school and classmates collectively drummed into me that who I was was something to be ashamed of.

My teenage years had been stolen from me by religious indoctrination, and homophobia – which, at least in that environment, were very closely inter-twined.

I would have to ‘do over’ my adolescence, in the months and years to come. To make stupid mistakes, and learn from them. To grow up. To fall in – and out – of love.

Fortunately, the world outside would prove a far more accepting, and interesting, place than my boarding school had been.

It’s hard to imagine how it could have been any worse.

 

**********

 

Ten years later I found myself attending my school reunion on a rainy night in a dingy function room in the Valley.

You may ask why I would subject myself to that (and I certainly am as I write this) but, at the time, I felt like I had something to prove.

Unlike Romy, it wasn’t to show how successful or popular I was, merely to demonstrate that they hadn’t broken me. After everything they had put me through, I was still standing.

It wasn’t necessarily true. My personal life was basically a mess, and would be for another few years, right up until I met my fiancé Steve. But that wasn’t going to stop me from faking it.

Nevertheless, I am thankful I went for one reason. Early in the evening, one of the boys who had been involved in the second assault on me saw me through the crowd, made a beeline straight toward me, and unprompted offered me his apology for what he, and the others, had done.

Not only was it sincere, it was obvious the incident had weighed heavily on him in the decade since.

Nothing was going to take back what had happened. But it was comforting to hear the wrong acknowledged, and to know at least one of the perpetrators was genuinely remorseful.

 

**********

 

Another decade later I went to my school’s 20-year reunion on a sunny afternoon at a bowling club down by the Brisbane River.

This time I didn’t have anything to prove, but I did have something to gain – to reconnect with some of the friends I had made during my time there. Which I did, although once again the highlight was a pleasant surprise.

Mid-afternoon I found myself having a chat with the boy (well, now middle-aged man) with those ‘eyelashes’, as well as another student with whom I had shared a dorm cubicle all the way back in 1991.

The crush was long gone (what had I been thinking?). Instead, we had a lovely conversation about our lives and what we were up to. They offered their heart-felt congratulations on my engagement to Steve, even remarking that he was a ‘good-looking fella’ (well, I certainly think so).

It was all incredibly natural, and showed how much they had evolved in the intervening decades.

Indeed, we had all changed.

 

**********

 

Well, nearly all. While it had eventually got better for me, I was soon reminded that it didn’t get better for everyone.

I sat outside on the wooden steps leading down to the green chatting with another student from my year. After I told him about my relationship, he volunteered that he had been out on the gay scene during his twenties, but that he had since rediscovered Jesus and was now straight.

Worse still, he was employed by a faith-based organisation working with troubled youth on the streets. He was likely perpetuating the same harmful messages we had received, and subsequently contributed to him becoming ‘ex-gay’, inflicting them on another generation.

While I had somehow managed to survive that horrific school, and was living a beautiful life teenage Alastair scarcely would have dreamed possible, for him those same five years seemed to be stuck on repeat.

 

**********

 

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

Or contact Lifeline Australia on 13 11 14.

 

Untitled design (1)

At my grandma’s house, during a break between school terms.

 

Postscript: 19 April 2019

 

It is now just over a month since I shared this story. It’s fair to say it is the hardest thing I’ve ever written. But choosing to press publish was even harder. The response has been overwhelming. From friends who offered their love and support. I thank you from the bottom of my heart.

 

From others who shared their own, similar experiences. The countless tweets, and messages, saying that if you simply changed the date or location, their story mirrored mine. I thank you for your honesty, and honour your courage.

 

From people who I went to school with. Many of whom who wrote to say they wish they had known at the time, and could have done something to help (that’s one of the worst things about ‘the closet’, it isolates you from people who could be allies). I thank you for your support.

 

I have also received messages from other students who attended the same school, who’ve detailed their own shocking experiences of abuse and discrimination. Except for them the cause wasn’t homophobia, but racism. Which is not at all surprising – if an environment is toxic for one group, it’s highly likely to be toxic for others too. But it was still depressing to learn the horrors they endured. I thank you for your strength.

 

Just this week I received a message from one of the teachers at the school. Who expressed her sincerest sympathy about what had happened to me. In doing so, she confirmed one of the worst elements of the story: the pastor’s sermon. And she informed me that multiple teachers had told the school afterwards that it was unacceptable.

 

I’m thankful for that as well. Not just to know some of the teachers had tried to stand up for teenage me, and all the other queer kids who were there. But also because it was the part I had most trouble writing, and publishing. Ultimately, the version I included in the story was toned down from the reality – in truth, the pastor was much more explicit that gay kids should consider killing themselves.

 

While my recollection of what had happened was extremely vivid, the possibility that anyone would tell a chapel full of several hundred 15, 16 and 17 year olds that ending their life was a better outcome than being homosexual was so horrific that I doubted myself. I shouldn’t have.

 

Several people have asked why I wrote this story. The answer to that is complex. In part, it is an act of preservation, of making sure stories like mine are not forgotten. In another sense it has been about catharsis – it has been genuinely liberating to share these experiences publicly, and let go of them privately.

 

It is also an act of defiance. To let schools like mine know that mistreating kids just because they are gay, or lesbian, or bisexual, or trans, was not acceptable in Queensland in the 1990s. It’s not acceptable in Australia in 2019. And it won’t be acceptable in the future. Your religion has never been, is not, and will never be, justification for homophobia, transphobia or any other kind of prejudice.

 

That message is especially important now, as religious organisations desperately fight to retain their special privileges that allow them to discriminate against students, teachers and other staff solely on the basis of their sexual orientation and gender identity.

 

We must not let them get away with it. Because if we do, we’ll be reading stories like mine in 2043. And, most importantly, let’s never forget those stories we will never get to hear.

 

**********

 

Finally, if you have appreciated 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

23 LGBTI Issues for the 2019 NSW Election

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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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

 

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.

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.

Back to School, Back to Discrimination for LGBT Students and Teachers

Every year, millions of students, and hundreds of thousands of teachers and other staff, start at Australian schools excited by the possibilities of the following 12 months – of the opportunities to learn (or teach) about the world around them, and about themselves.

 

However, for far too many students – and teachers and other staff – in schools around the country it will be another year in which they have to worry about being discriminated against, lawfully, simply because of their sexual orientation or gender identity.

 

That’s because, under the anti-discrimination laws of five out of nine Australian jurisdictions, lesbian, gay, bisexual and transgender (LGBT) students can legally be treated adversely by religious schools[i]. Six jurisdictions allow discrimination against LGBT teachers and other staff – plus one state which has a ‘don’t ask, don’t tell’ approach.

 

To find out what the law is in your jurisdiction, see below. And to find out just how many students, teachers and other staff are potentially affected by these discriminatory provisions, please read to the end of the article.

 

**********

 

Commonwealth

 

While LGBT students, teachers and other staff are protected against discrimination under the Commonwealth Sex Discrimination Act 1984, these protections are fundamentally undermined by the inclusion of two excessively broad exceptions for religious organisations.

 

The first is contained in sub-section 37(1)(d), which states that:

 

“Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

It is highly likely that this provision allows religious schools to discriminate against LGBT students, teachers and staff. But, just in case there was any doubt, the Act includes an additional ‘right to discriminate’ just for religious schools:

 

“Section 38

Educational institutions established for religious purposes

(1) Nothing in paragraph 14(1)(a) or (b) or (14)(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

 

Sub-section 38(2) establishes a similar ‘right to discriminate’ against contract workers, while sub-section 38(3) reiterates the ability of religious schools to discriminate against LGBT students.

 

In short, instead of protecting LGBT students and teachers at religious schools against discrimination, the Commonwealth Sex Discrimination Act 1984 authorises their mistreatment (a pattern that, as we shall below, is sadly replicated in most states and territories).

 

Can religious schools discriminate against LGBT students under Commonwealth law? Yes.

 

Can religious schools discriminate against LGBT teachers and other staff under Commonwealth law? Yes.

 

**********

 

New South Wales

 

As I have written elsewhere[ii], despite being the first Australian jurisdiction to introduce gay anti-discrimination laws, NSW now has perhaps the worst LGBT anti-discrimination legislation in the country. A key reason for that is the extremely generous exceptions provided to religious (and other non-government) schools.

 

As with the Commonwealth, it is likely NSW religious schools have the ‘right to discriminate’ against LGBT students, teachers and other staff[iii] as part of the general religious exception provided by sub-section 56(d):

 

“Nothing in this Act affects… any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

And, just like the Commonwealth, there is also a specific exception applying only to schools – however, in what is a unique approach, the NSW Anti-Discrimination Act 1977 actually allows all non-government schools to discriminate against students on the grounds of homosexuality or transgender status, even where they are not religious:

 

“Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority” (emphasis added).

 

Section 38K establishes a similar right for NSW non-government schools (religious and not-religious alike) to discriminate against transgender students.

 

There are also equivalent sections regarding lesbian, gay and transgender teachers and other staff at non-government schools (religious and not-religious alike): section 49ZH and 38C respectively.

 

Therefore, all NSW non-government schools are able to fire (or not hire) LGT teachers and other staff under the Anti-Discrimination Act 1977, and to refuse to admit, treat adversely and even expel students merely for being lesbian, gay or transgender. That is, in a word, appalling.

 

Can religious schools discriminate against LGBT students under NSW law? Yes – and that includes non-government schools that are not religious, too.

 

Can religious schools discriminate against LGBT teachers and other staff under NSW law? Yes, including non-government schools that are not religious.

 

**********

 

Victoria

 

Victoria is another jurisdiction that has adopted the ‘two-fold’ approach to permitting discrimination by religious schools against LGBT students, teachers and other staff.

 

First up, sub-section 82(2) of the Victorian Equal Opportunity Act 2010 states that:

 

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

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

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

 

This is then supplemented by section 83, which is entirely concerned with providing religious schools with an explicit ‘right to discriminate’:

 

Religious schools

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

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

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

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

 

In 2016, there were two attempts to limit the impact of these sections – the first, by the Andrews Labor Government, would have compelled religious schools (and other religious employers) to demonstrate that discrimination against LGBT employees was an ‘inherent requirement’ of the respective position[iv]. The second, by the Victorian Greens, would have prohibited discrimination against LGBT students.

 

Unfortunately, both Bills were voted down by the Upper House (and specifically by Liberal and National Party MLCs) leaving LGBT students, teachers and other staff in Victorian religious schools exposed to mistreatment solely because of who they are.

 

Can religious schools discriminate against LGBT students under Victorian law? Yes.

 

Can religious schools discriminate against LGBT teachers and other staff under Victorian law? Yes.

 

**********

 

Queensland

 

It may be surprising for some (especially given they only equalised the age of consent in 2016), but Queensland is one of four jurisdictions that does not provide carte blanche for religious schools to discriminate against LGBT students, teachers and other staff.

 

That is because they have adopted a more limited version of the broad general exception enacted elsewhere. Section 109 of the Queensland Anti-Discrimination Act 1991 provides:

 

Religious bodies

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

(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 (emphasis added).

 

LGBT students are protected from discrimination as a result of this provision.

 

Prima facie, it would appear that LGBT teachers and other staff should be too – after all, sub-section (2) says the religious exception does not apply to work.

 

However, there is an additional section of the Anti-Discrimination Act 1991 that does authorise discrimination against LGBT employees of religious schools in certain circumstances. Section 25 states:

 

“25 Genuine occupational requirements

(1) A person may impose genuine occupational 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…

(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.

(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.”

 

Summarising the above, religious schools in Queensland can discriminate against LGBT teachers and other staff if:

  • the employee acts in a way contrary to the employer’s religious beliefs during the selection process, at work or in connection with work, and
  • the employer can show it was a genuine occupational requirement that the employee act in accordance with those religious beliefs.

 

But, if the teacher or staff member does not act in such a way (which presumably includes the mere acknowledgement of having a same-sex partner, for example), they cannot be punished simply for being lesbian, gay, bisexual or transgender. Further, the religious school cannot ask whether the employee is LGBT.

 

In short, Queensland allows a ‘don’t ask, don’t tell’ approach to LGBT teachers and staff in religious schools – but they can still be fired for being ‘out’ at work. Of course, more than two decades of US military policy demonstrated the folly of DADT – and it says a lot about the terrible state of Australian LGBT anti-discrimination laws that the Anti-Discrimination Act 1991 remains the second-best law in this particular area.

 

Can religious schools discriminate against LGBT students under Queensland law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Queensland law? Yes, in some circumstances (including where it is a genuine occupational requirement, and the employee is ‘out’ at work). No, when the employee is not ‘out’ – and a ‘don’t ask, don’t tell’ policy applies.

 

**********

 

Western Australia

 

The Western Australian Equal Opportunity Act 1984 is far less complex – and far less positive – in terms of its approach to LGBT anti-discrimination protections for students, teachers and staff in religious schools.

 

Just like the Commonwealth, NSW and Victoria, Western Australia provides ‘dual’ exceptions to religious schools granting them the ‘right to discriminate’. Sub-section 72(d) notes:

 

Religious bodies

Nothing in this Act affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

Section 73 then sets out specific, additional exceptions with respect to teachers:

 

(1) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”

 

And students:

 

(3) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with 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-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”

 

Prima facie, that means Western Australian religious schools can only discriminate against students on the basis of their religion, not their sexual orientation or gender identity. However, unlike Queensland’s section 109(2), there is no equivalent limitation on the general religious exception in WA, meaning religious schools still (probably) retain the right to discriminate against LGBT students under section 72(d).

 

Overall, then, Western Australia provides multiple grounds for religious schools to discriminate against LGBT teachers and other staff, and likely one ground to discriminate against LGBT students.

 

Can religious schools discriminate against LGBT students under Western Australian law? Yes (probably).

 

Can religious schools discriminate against LGBT teachers and other staff under Western Australian law? Yes.

 

**********

 

South Australia

 

The Equal Opportunity Act 1984 makes it clear that religious schools in South Australia can discriminate against LGBT teachers and other staff, as a result of a specific exception in section 34. However, it imposes strict procedural requirements if a religious school wishes to utilise such exceptions:

 

(3)         This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if— 
(a)         the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and (b)         the educational authority administering the institution has a written policy stating its position in relation to the matter; and 
(c)         a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and 
(d)         a copy of the policy is provided on request, free of charge— 
(i)         to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and 
(ii)         to students, prospective students and parents and guardians of students and prospective students of the institution; and 
(iii)         to other members of the public.

 

The situation for LGBT students is slightly less clear-cut, with sub-sections 37(1) and (2) providing that:

 

Discrimination by educational authorities

(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex, sexual orientation or gender identity-

(a) by refusing or failing to accept an application for admission as a student; or

(b) in the terms or conditions on which it offers to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”[v]

 

These protections, for LGBT students, appear to be quite strong – however, it should be noted that the general religious exceptions featured in section 50 may still apply to this situation. Again, unlike Queensland’s section 109(2), there is no equivalent limitation on the Act’s general religious exceptions, meaning religious schools still (probably) retain the right to discriminate against LGBT students under sub-sections 50(ba) and (c).

 

This also appears to be the view of the Equal Opportunity Commission, as expressed in its submissions to the Law Reform Institute review of LGBTI laws in South Australia[vi].

 

Can religious schools discriminate against LGBT students under South Australian law? Probably.

 

Can religious schools discriminate against LGBT teachers and other staff under South Australian law? Yes, although procedural requirements apply.

 

**********

 

Tasmania

 

Despite being the last Australian jurisdiction to decriminalise homosexuality, Tasmania was the first – and, to date, remains one of only two – states or territories to ensure that all LGBT students, teachers and staff cannot be discriminated against solely because of their sexual orientation or gender identity.

 

That is because the religious exceptions offered under the Anti-Discrimination Act 1998 are narrowly drafted. In terms of employment, section 51 states that:

 

Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.”

 

In short, a Tasmanian religious school can discriminate against a teacher or staff member because of their religion – but there is no equivalent right to discriminate on the basis of their sexual orientation or gender identity.

 

The protection in relation to LGBT students is even more unambiguous. Section 51A provides:

 

Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents of the other person’s grandparents.”

 

Not only does this section only apply to admission (and therefore does not authorise discrimination once a student is enrolled, including potential expulsion), it also only applies to the grounds of religious belief or affiliation, and religious activity.

 

Once again, a religious school can only discriminate against students on the basis of their (or their parents’/grandparents’) religion – they cannot legally mistreat students on the basis of their, or their family’s, sexual orientation or gender identity. In this way, the Tasmanian Anti-Discrimination Act 1998 provides a model to which other Australian jurisdictions should aspire (and which the ACT Government has recently emulated).

 

Can religious schools discriminate against LGBT students under Tasmanian law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Tasmanian law? No.

 

**********

 

Australian Capital Territory

 

The ACT Government recently passed the Discrimination Amendment Act 2018 which has successfully adopted the best-practice approach of Tasmania in this area.

 

The previous specific exceptions for religious schools (in section 33) were abolished, and the general religious exception (in section 32) has been limited, and now does not allow religious schools to discriminate against students, teachers and other staff on the basis of their sexual orientation, gender identity or intersex status.

 

Like Tasmania, they do allow schools to preference students and teachers in admission and employment, respectively – although have gone even further than Tasmania by requiring schools that want to discriminate in this way to publish their policies.

 

Can religious schools discriminate against LGBT students under ACT law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under ACT law? No.

 

**********

 

Northern Territory

 

The Northern Territory allows discrimination by religious schools against LGBT teachers and other staff. Arguably, it does so only once (instead of providing two separate ‘rights to discriminate’, like the Commonwealth and some other states) – although once is still one time too many.

 

While the ‘general religious exception’ in the NT’s Anti-Discrimination Act is comparatively constrained (covering “an act by a body established for religious purposes if the act is done as part of any religious observance or practice”: sub-section 51(d)), there is an additional special ‘right to discriminate’ against LGBT teachers and staff. Section 37A provides that:

 

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

 

However, there is no equivalent right to discriminate against LGBT students – indeed, like the current Tasmanian legislation, the NT only allows religious schools to discriminate on the basis of the student’s faith (sub-section 30(2) provides that “[a]n educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”)

 

Combined with the more limited general religious exception outlined above, that means NT religious schools probably cannot discriminate against LGBT students. Consequently, the Northern Territory actually has the fourth-best LGBT anti-discrimination laws in Australia on this issue.

 

Can religious schools discriminate against LGBT students under Northern Territory law? No.

 

Can religious schools discriminate against LGBT teachers and other staff under Northern Territory law? Yes.

 

**********

 

Summary

 

In conclusion, then, far too many LGBT students, teachers and other staff members will start the 2019 school year in a vulnerable position – they can be lawfully discriminated against simply because of who they are.

 

In terms of students, such discrimination is permitted in religious schools under the anti-discrimination laws of:

  • Commonwealth
  • New South Wales
  • Victoria
  • Western Australia (probably), and
  • South Australia (probably).

 

Only Queensland, Tasmania, the Australian Capital Territory and the Northern Territory have chosen to protect students in religious schools from homophobic, biphobic and transphobic discrimination.

 

As we have seen, the situation for teachers and other staff members is even worse – they can be legally mistreated under anti-discrimination legislation in:

  • Commonwealth
  • New South Wales
  • Victoria
  • Western Australia
  • South Australia (although procedural requirements apply), and
  • Northern Territory.

 

In Queensland, LGBT teachers at religious schools can be discriminated against if they are ‘out’ – otherwise a ‘don’t ask, don’t tell’ policy applies. Only Tasmania and the ACT refuse to provide religious schools with an explicit ‘right to discriminate’ against LGBT teachers and other staff.

 

Up to this point, this discussion has been very ‘legal’, and somewhat technical. But it is important to remember that the impact of these religious exceptions is significant in practical terms.

 

Based on data from the Australian Bureau of Statistics[vii], in 2015 there were more than 1 million students enrolled at Australian schools where lesbian, gay, bisexual and transgender students could be discriminated against simply because of who they are.

 

In fact, the exact number was 1,007,864[viii]. With the number of students in non-government schools rising by 1.4% per year, this has likely risen to above 1,040,000 at the start of 2019 (despite recent changes meaning LGBT students in Canberra are now protected).

 

The number of teachers and other staff that can be lawfully discriminated against is just as confronting.

 

In 2015, 110,073.8 Full Time Equivalent positions[ix] were at religious schools that could legally discriminate against teachers and other staff members who were lesbian, gay, bisexual or transgender.

 

An additional 28,944.1 FTE positions – employees at religious schools in Queensland – could be adversely treated if they were ‘out’ at work.

 

In fact, of the 141,806.1 FTE positions at religious schools nationally, only the 2,788.2 FTE positions in Tasmania were fully protected against discrimination on the basis of their sexual orientation or gender identity – or less than 2% of teachers and staff members at religious schools nationally. Although, from the 2019 school year, they will be joined by teachers and other staff at religious schools in the ACT (2,690.8 FTE positions in 2015).

 

The numbers of students, teachers and staff who can legally be discriminated against if they happen to be LGBT are almost too large to comprehend. They remain so even when broken down by jurisdiction.

 

For example, in my (adopted) home state of NSW, 409,728 students[x] attend, and 41,487.8 FTE[xi] teachers and other staff members are employed at, religious schools that can practice this (abhorrent) discrimination.

 

Of course, not all religious schools engage in the mistreatment of lesbian, gay, bisexual and transgender students, teachers and staff. I’m sure there are many that refuse to discriminate on the basis of sexual orientation and gender identity, and aspire to be genuinely inclusive learning environments.

 

But the fact remains that these schools retain the legal ability to exclude LGBT students and employees simply because of who they are – and, in my opinion at least, I do not believe they can be fully inclusive until this ‘right to discriminate’ is removed.

 

And so, with the school year commencing, and parliamentary sittings set to resume around the country shortly, I would argue that Commonwealth, state and territory MPs (outside Tasmania and the ACT) should educate themselves about this unacceptable discrimination.

 

If they do, they might finally take action to ensure that all students can learn in classrooms that are free from anti-LGBT discrimination – and are taught by the best teachers available, including LGBT teachers, and not just the best cisgender heterosexual teachers.

 

If they don’t – if Members of Parliament continue to allow more than 1 million students to attend, and more than 110,000 teachers and staff to be employed at, religious schools that can lawfully discriminate on the basis of sexual orientation and gender identity – then those MPs deserve to receive an ‘F’, in 2019, and for every year until this unacceptable situation is fixed.

 

theres-no-place-for-discrimination-in-the-classroom

And there’s no place for discrimination in the school staffroom, either.

 

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] Intersex students (and teachers and other staff) are not included in this article because, irrespective of their jurisdiction, they should be protected by the Commonwealth Sex Discrimination Act 1984, and, according to major religious groupings during the development of that legislation, the religious exceptions contained therein do not apply to intersex status.

[ii] What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] It should be noted that the NSW Anti-Discrimination Act does not prohibit discrimination on the basis of bisexuality, at all – it is included as part of the LGBT acronym here for the sake of consistency across the article.

[iv] For more, see Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

[v] Note that these provisions only apply to students – there is no equivalent section for teachers and other staff.

[vi] This would also reflect judicial interpretation of the general religious exception in NSW (including in cases like OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010)).

[vii] Australian Bureau of Statistics – 4221.0 Schools, Australia, 2015, released 04/02/2016

[viii] This calculation is based on the total number of students attending Catholic and Independent schools nationally (1,305,843) minus the number of similar students in those jurisdictions where they are protected from discrimination: Queensland (262,166); Tasmania (24,142) and Northern Territory (11,671). Unfortunately, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[ix] As with the previous calculation, this figure is based on the number of FTE positions at Catholic and Independent schools Australia-wide (141,806.1) minus the 28.944.1 in Queensland where the ‘don’t ask, don’t tell’ policy applies, and 2,788.2 in Tasmania, where LGBT teachers and staff are protected against anti-LGBT discrimination. Once again, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[x] Noting that the caveat that applies to national figures (about the treatment of religious versus non-religious Independent schools) does not apply here – all non-government schools in NSW can discriminate against LGBT students, including non-religious schools.

[xi] The caveat – about the treatment of religious versus non-religious schools – does apply here however, because non-religious Independent schools in NSW cannot discriminate against LGBT teachers and staff, only LGBT students.

Letter to Candidates and Parties re LGBTI Anti-Discrimination and Anti-Vilification

[Update 29 June 2016: Responses received by midday today have been posted at the end of this post, generally in the order they were received. Further responses will be added if they are received by 5pm Thursday 30 June.]

 

I will be sending the below letter to all candidates contesting my local electorate (Sydney) and all parties vying for NSW Senate seats at the upcoming July 2 Federal Election (with candidates and tickets announced by the Australian Electoral Commission on Friday 10 June 2016).

 

Specifically, I am asking for their views on how the anti-discrimination laws that cover lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians can be improved. This includes the removal of religious exceptions, both generally and specifically in relation to education, the introduction of LGBTI anti-vilification protections, and the establishment of an LGBTI Discrimination Commissioner.

 

It also seeks their commitment not to introduce new ‘special rights’ to discriminate against LGBTI couples as part of any marriage equality legislation – because the recognition of equal love should not be undermined by including provisions supporting differential treatment.

 

As always, I will post any responses that I receive here. Please feel free to send similar letters to the candidates and parties contesting your electorate and Senate seats respectively.

 

**********

 

Dear [candidate/party]

 

LGBTI anti-discrimination & anti-vilification

 

I am writing to you in your capacity as a [candidate for my electorate of Sydney/party contesting the NSW Senate] at the July 2 Federal Election.

 

Specifically, I am writing to seek your commitments to help improve the current anti-discrimination and anti-vilification protections provided to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

While the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was historic, introducing LGBTI anti-discrimination laws at Commonwealth level for the first time, the protection that it offers remains incomplete.

 

For example, the exceptions provided by sections 37 and 38 of the Sex Discrimination Act 1984 (‘the Act’) to religious organisations and religious schools ensure that LGBTI people remain subject to discrimination across a wide range of areas of public life.

 

Unlike the laws prohibiting racial vilification in the Racial Discrimination Act 1975, there are also no protections against LGBTI vilification under Commonwealth law.

 

Nor does the Act establish a Commissioner with responsibility to address LGBTI Discrimination – whereas the Australian Human Rights Commission does have Commissioners for Aboriginal and Torres Strait Islander Social Justice, Age Discrimination, Disability Discrimination, Race Discrimination, Sex Discrimination and a Children’s Commissioner.

 

For more on what I believe are the limitations of current Commonwealth LGBTI anti-discrimination law, please see “What’s wrong with the Sex Discrimination Act 1984?”

 

There is one final issue relating to LGBTI anti-discrimination law that is also likely to arise in the next term of Parliament – and that is the question of whether the legislation which, hopefully, introduces marriage equality in Australia will also include new ‘special rights’ for civil celebrants, and businesses that provide wedding-related services, to discriminate against LGBTI couples.

 

In my opinion, the law that finally recognises equal love in this country should not be undermined by provisions that allow for differential treatment (for more on this subject, please see “In the battle for marriage equality, we must not forget to fight against religious exceptions”).

 

I am seeking your views on the above issues – and would therefore appreciate your answers to the following five associated questions:

 

  1. Will you repeal sub-section 37(1)(d) of the Sex Discrimination Act 1984, which currently allows religious organisations to discriminate against LGBTI employees, and LGBTI people accessing services, in a wide range of areas of public life?

 

  1. Will you repeal section 38 of the Act that provides religious schools with the ability to discriminate against LGBTI teachers and students?

 

  1. Do you commit to introducing new laws to protect LGBTI Australians against vilification, on an equivalent basis to racial vilification laws?

 

  1. Will you establish a position of LGBTI Discrimination Commissioner within the Australian Human Rights Commission, with similar responsibilities to existing Commissioners covering the areas of Race, Sex, Disability and Age?

 

  1. Will you oppose the inclusion of new exceptions in any marriage equality legislation that would seek to provide civil celebrants, and businesses providing wedding-related services, with the ability to discriminate against LGBTI couples?

 

I look forward to receiving responses from you in advance of the July 2 Federal Election on these issues of concern to me, and to other lesbian, gay, bisexual, transgender and intersex Australians.

 

Sincerely,

Alastair Lawrie

N-3

Responses from Candidates for the Seat of Sydney

 

Tula Tzoras – Online Direct Democracy

Tom Geiser – Science Party

Peter Boyle – Socialist Alliance

Tanya Plibersek – Australian Labor Party

Sylvie Ellsmore – Greens

 

Responses from Candidates for the NSW Senate

 

Ross Fitzgerald – Australian Sex Party

Colin Broadbridge – Christian Democratic Party (Fred Nile Group)

Phil Jobe – Family First

Ray Bennie – Veterans Party

Ingrid Ralph – Australian Cyclists Party

Jai Cooper – Australian Cyclists Party

Ken Canning – Socialist Alliance

Party Response – Socialist Alliance

Andrew Katelaris – Marijuana (HEMP) Party

Greg Frearson – Mature Australia

Ken Stevens – Derryn Hinch’s Justice Party

Ann Lawler – Citizens Electoral Council

Barry Keldoulis – The Arts Party

Stacey Dowson – Drug Law Reform

Janise Farrell – Voluntary Euthanasia Party

Darren McIntosh – Pirate Party Australia

Party Response – Australian Labor Party

Shayne Higson – Voluntary Euthanasia Party

 

Bryan Lambert – Independent

Nick Chapman – Independent

David Ash – Independent

 

 

Response to Letter to Malcolm Turnbull About the Marriage Equality Plebiscite

A lot has happened in the 10 days since I first posted my letter to Malcolm Turnbull about the marriage equality plebiscite.

To begin with, a number of Coalition MPs have publicly revealed that, irrespective of the outcome of any plebiscite, they will continue to vote against the equal recognition of LGBTI relationships.

This conservative crusade was led by Senator Eric Abetz who told The Guardian that:

“everyone knows my view is very strongly that a marriage between a man and a woman is the foundational institution for socialising the next generation. And every member of parliament will make up his or her mind after the plebiscite is held. People will take into account the views of the electorate, the views of the nation and their own personal views… There will be people in the parliament who could not support the outcome of a plebiscite whichever way it went.”

His view – that if the voters of Australia supported marriage equality at a plebiscite they could essentially ‘get stuffed’ – was soon supported by both fellow Liberal Senator Cory Bernardi, who told Sky News that “[a] plebiscite is a glorified opinion poll, and no government should be bound by that” and Nationals Senator Bridget McKenzie, the latter so committed to opposing LGBTI equality she is willing to deny legal rights to her own brother.

Then, former Prime Minister Tony Abbott (who similarly thinks his own relationship more worthy of recognition that that of his sibling) jetted off to address an audience of homophobes in the US, telling them that:

“[w]e shouldn’t try to change something without understanding it, without grasping why it is one that one man and one woman open to children until just a very few years ago has always been considered the essence of marriage and the heart of family… We can’t shirk our responsibilities to the future, but let’s also respect and appreciate values and institutions that have stood the test of time and pass them on, undamaged, when that’s best. That’s a goal we should all be able to share” [emphasis added].

Despite claiming that he still supports holding a marriage equality plebiscite, it is clear which outcome he wanted, placing into serious doubt his sincerity in introducing legislation following a successful ‘yes’ vote (were he still Prime Minister – a position to which he obviously wishes to return).

The Australian Christian Lobby has also done its job in undermining the credibility of any marriage equality plebiscite, with comments reported by The Guardian that:

“Abbott emerged from that meeting announcing the Coalition had decided to use its numbers to block the introduction into the Australian parliament of yet another bill to change the definition of marriage… Instead, a people’s vote known as a plebiscite would be held sometime after the 2016 election, kicking the issue into the long grass (putting the issue off) and blunting the momentum of same-sex marriage lobbyists” [emphasis added].

Australian Marriage Equality head Rodney Croome, quoted in the same article, quite accurately summed up these developments with the following: “[a]s a policy option, the plebiscite is collapsing under the weight of its own cynicism.”

Indeed, one of the most pleasing aspects of this week’s debate has been the increasing media scrutiny of the proposal to hold a plebiscite on marriage equality, with respected journalists such as Lenore Taylor describing it asdaft and Mark Kenny observing that:

“Malcolm Turnbull’s commitment to the plebiscite can be seen for what it really is: an internal matter – the price of entry to the leadership. Slow and costly… his own credibility with voters is also at stake if he is seen to trade principles in pursuit of power and an easier life.”

The final major development of the past 10 days was yesterday’s (Friday 29 January 2016) announcement by Australian Marriage Equality that it now believes there is majority support for passing majority equality legislation in both houses of parliament – if only the Coalition were willing to grant their MPs and Senators a free vote.

All of which puts the issue of marriage equality squarely in the Prime Minister’s court (the current one, Malcolm Turnbull, not Prime Minister-in-exile Tony Abbott). The original proposal to hold a marriage equality plebiscite may not have been his, but, now that he is in the Lodge, he owns it.

It is up to Malcolm Turnbull to decide whether Australia will be subjected to a pointless plebiscite on this issue. The time has come for him to show whether he is a leader who is strong enough to back a free vote, or whether he is instead prepared to allow this farce to drag on for not just months, but years, solely for reasons of political expediency.

The signs, however, are not good. Turnbull reiterated the Government’s position in support of a plebiscite to 3AW Radio just yesterday, saying it will “absolutely” pass parliament following a successful vote (something which Abetz, Bernardi, McKenzie and others may have more to say about in coming weeks).

Finally, he has responded to my letter to him on this subject – well, sort of anyway. Given he seems to have outsourced his decision-making on marriage equality to his homophobic predecessor Tony Abbott, it is possibly unsurprising, although nevertheless disappointing, that he has outsourced responsibility for answering correspondence regarding the marriage equality plebiscite to Attorney-General Senator George Brandis, who in turn has delegated it to his Department.

Here is the Government’s response to my letter to Malcolm Turnbull about the marriage equality plebiscite:

 

“27 January 2016

 

Mr Alastair Lawrie

[Address withheld]

 

Dear Mr Lawrie

Thank you for your recent correspondence to the Prime Minister, the Hon Malcolm Turnbull MP, about same-sex marriage. Your correspondence was referred to the Attorney-General, Senator the Hon George Brandis QC, as marriage falls within his portfolio responsibilities. The Attorney-General has asked that I reply to you on his behalf.

I appreciate you taking the time to write to the Government on the issue of same-sex marriage and for sharing your personal experiences. It is clear that this issue holds particular significant for you.

The Government appreciates that, like you, many Australians have strong personal views about same-sex marriage. That is why, last year, it was decided that this issue should be resolved through a national vote that gives every Australian the opportunity to have their say.

The Government believes it is thoroughly democratic to ask the Australian people whether the Marriage Act 1961 should be amended to allow for same-sex marriage, provided there are appropriate safeguards in place to protect religious freedom[i].

Although a plebiscite will cost money, the Government is of the view that every Australian should be able to have their say on this important issue.

Thank you for bringing your views to the Government’s attention.

 

Yours sincerely

[Name withheld]

Marriage Law and Celebrants Section”

 

Croome on Plebiscite

 

[i] The reference to “appropriate safeguards in place to protect religious freedom” is obviously of major concern, given the push for exceptions to be granted to civil celebrants and other businesses that supply weddings to allow them to discriminate against LGBTI couples. This is an issue that will be addressed in a future post.

Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate

Alex Greenwich MP

58 Oxford St

PADDINGTON NSW 2021

sydney@parliament.nsw.gov.au

Friday 21 August 2015

Dear Mr Greenwich

SUBMISSION ON DISCUSSION PAPER RE REMOVING SURGICAL REQUIREMENT FOR CHANGES TO BIRTH CERTIFICATE

Thank you for the opportunity to provide this short submission in response to the above-mentioned Discussion Paper, and for highlighting what is clearly an important issue for transgender people in NSW.

I should begin by noting that I am writing this from the perspective of a cisgender gay man and that, if this submission is contrary to the views expressed by trans* individuals and organisations, then those submissions should obviously be preferred.

Nevertheless, as a long-term advocate and activist within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, I find it hard to disagree with the premise of the Discussion Paper which is that trans* people should not be required to undergo irreversible sex affirmation surgical procedures before being able to apply to amend their birth certificate.

Similarly, I can see no valid reason why the approach which has been adopted by Ireland – and which is described in the Discussion Paper as ‘world’s best practice’ – should not be adopted here.

This approach – allowing transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation – has a number of significant advantages.

These include:

  • Recognising the diversity of experience within the transgender community
  • Respecting the personal autonomy of people to identify themselves and
  • Removing the unnecessary ‘medicalisation’ of this process.

Above all, adopting the Irish approach would make it easier for trans* people to obtain documentation which reflects their gender identity, which is a positive outcome in and of itself.

I look forward to seeing the Final Report of this consultation later in 2015, and to the ongoing work of yourself and the NSW Cross-Party LGBTI Working Group on a wide range of other, related issues, including (but not limited to):

  • The abolition of incredibly unjust ‘forced trans* divorce’ laws
  • The removal of exceptions to the NSW Anti-Discrimination Act 1977 which allow private schools to discriminate against trans* students and teachers[i] and
  • The abolition of the unjustifiably broad exceptions granted to religious organisations in sub-section 56(d)[ii] of the same Act.

Thank you in advance for taking this submission into account. Please contact me at the details provided below if you would like clarification or further information about any aspect of this submission.

Sincerely,

Alastair Lawrie

[i] Section 38K of the NSW Anti-Discrimination Act 1977, which covers education, provides that “[n]othing in this section applies to or in respect of private educational authorities”.

[ii] “Nothing in this Act affects: … (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

State Member for Sydney Alex Greenwich (source NSW Parliament website).

State Member for Sydney Alex Greenwich (source: NSW Parliament website).