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.

What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

 

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

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

 

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions (although there is also a risk these laws will be wound back – see below).

 

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Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection), and

 

intersex means the status of having physical, hormonal or genetic features that are-

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”

(with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute, although they have since been joined by the ACT and South Australia).

 

Overall, then, the Tasmanian Anti-Discrimination Act 1998 adopts best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

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Religious Exceptions

 

The Anti-Discrimination Act 1998 is also best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

Section 51 “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, principles or practices.”

 

Section 51A “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 or the other person’s grandparents.”

 

Section 52. “Participation in religious observance

A person may discriminate against another person on the ground of religious belief or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

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Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement, as well as an impending threat that could significantly undermine these laws.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest the only possible improvement to the Act in any of the three areas outlined in this post: an amendment to sub-section 19(c) to include gender identity and intersex (which are both equally deserving of this protection).

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

As indicated earlier, these is an impending threat that could undermine existing Tasmanian anti-vilification protections, and that is a proposed amendment to broaden the ‘public purpose’ defence to both section 17(1) and (19). Currently, section 55 provides that:

 

Public purpose

The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.”

 

In late 2016, as I have written elsewhere the Hodgman Liberal Government introduced legislation to expand this defence, and specifically to cover:

 

“(1)(c) a public act done in good faith for-

(i) academic, artistic, scientific, religious or research purposes; or

(ii) any other purpose in the public interest” [emphasis added] where

“(2) In this section-

Religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief.”

 

In short, the Tasmanian Government wants to undermine existing anti-vilification laws to make it easier for religious individuals and organisations to “engage in… conduct which offends, humiliates, insults or ridicules another person” and even where it “incite[s] hatred towards, serious contempt for, or severe ridicule or, a person or a group of persons.”

 

It is clear that the most likely targets of this broader ‘right’ to vilify will be lesbian, gay, bisexual and transgender Tasmanians.

 

The Bill has already passed the Legislative Assembly, and it is expected to be considered by the Legislative Council in the second half of 2017.

 

It will be incredibly disappointing, not just to LGBTI Tasmanians but also to people around the country who have an interest in this area, if the Council agrees to change, and significantly limit, what is currently the best anti-discrimination legislation in the country – all to make it easier for religious groups to vilify people on the basis of their sexual orientation, gender identity or intersex status.

 

Hopefully enough Council Members reject this attempt, and in doing so ensure the Tasmanian Anti-Discrimination Act 1998 retains its ‘best practice’ status in relation to all of protected attributes, religious exceptions and anti-vilification coverage.

 

will-hodgman

Will Tasmanian Premier Will Hodgman undermine the best LGBTI anti-discrimination laws in Australia simply to make it easier for religious organisations to vilify people on the basis of their sexual orientation or gender identity?

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 six out of nine Australian jurisdictions, lesbian, gay, bisexual and transgender (LGBT) students can legally be treated adversely by religious schools[i]. Seven 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.

 

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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.

 

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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 I believe 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.

 

Therefore, in addition to religious schools being able to fire (or not hire) LGBT teachers and other staff, all NSW non-government schools explicitly have the ability 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.

 

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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.

 

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Queensland

 

It may be surprising for some (especially given they only equalised the age of consent in 2016), but Queensland is one of three 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.”

 

Overall, then, 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.

 

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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.”

 

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

 

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

 

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. That is because such adverse treatment is permitted under the ‘general religious exception’ contained in sub-sections 50(ba) and (c):

 

Religious bodies

This Part does not render unlawful discrimination in relation to…

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

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 remembered that the general religious exceptions featured in section 50 still apply to this situation.

 

While it is not guaranteed, and of course would be subject to judicial interpretation, I believe it is likely that discrimination by religious schools against LGBT students in South Australia would therefore still be permitted[vi]. 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.

 

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

 

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

 

**********

 

Tasmania

 

Despite being the last Australian jurisdiction to decriminalise homosexuality, Tasmania was the first – and, to date, remains the only – state or territory 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.

 

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

 

In contrast to the positive laws in Tasmania, the Australian Capital Territory has adopted a more ‘traditional’ approach to religious exceptions in this area – and that is to effectively provide religious schools with ‘free rein’ to discriminate against LGBT students, teachers and staff.

 

And it has done so both with its general religious exception, and with specific exceptions for religious schools, in the Discrimination Act 1991.

 

“Section 32 Religious bodies

Part 3 does not apply in relation to-… (d) any other act or practice of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

 

This is supplemented by section 33, which clarifies that it is entirely lawful for a religious school to discriminate against LGBT teachers (sub-section (1)) and students (sub-section (2)):

 

Educational institutions conducted for religious purposes

(1) Section 10 or 13 does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-

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

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

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

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

 

Which means that, contrary to its reputation as a supposed bastion of progressive policy, the Australian Capital Territory allows religious schools to mistreat LGBT students, teachers and other staff in much the same way as the majority of other jurisdictions.

 

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

 

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

 

**********

 

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 third best LGBT anti-discrimination laws in Australia on this issue.

 

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

 

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 2017 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
  • South Australia, and
  • Australian Capital Territory.

 

Only Queensland, Tasmania and (probably) 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
  • Australian Capital Territory, 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 refuses 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 1,035,000 at the start of 2017.

 

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.

 

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) 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 2017, 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.

 

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 certainly 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).

An LGBTI Agenda – Submission on Draft ALP National Platform 2015

The following is my personal submission in response to the National Platform – Consultation Draft of the Australian Labor Party, released ahead of the 2015 National Conference in Melbourne in July.

While, as an individual, I am obviously concerned about a wide range of issues, including health, education, workers’ rights and climate change, this submission focuses on issues relating to the equality and human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

In this respect, despite the inclusion of the following statement in Chapter 1: Labor’s Enduring Values: “[w]e believe in equality for lesbian, gay, bisexual, transgender and intersex Australians, in their daily lives and under the law” (on page 9), and a number of welcome commitments throughout the document (including the strong statement relating to international LGBTI rights, in Chapter 11: Australia’s place in a changing world, at paragraph 31 on page 206), there remain several areas where the National Platform could better deliver on the Party’s promise of LGBTI equality.

In this submission I will make a range of recommendations to improve the Platform with respect to LGBTI issues, and, where relevant, include an explanation of why each change is required. This includes recommendations with respect to intersex issues (based on the recommendations made by OII Australia) and concerning refugee issues (based on the recommendations made by Labor for Refugees, with two additional proposals).

I will also make two recommendations with respect to the Party’s Rules, which will also be debated at the National Conference, and which directly relate to LGBTI equality.

Thank you for the opportunity to make this submission, and for considering its contents.

Alastair Lawrie

Remove religious exceptions to anti-discrimination laws

Recommendation 1: In Chapter 9: A fair go for all, under the heading “Removing discrimination”, on page 167 after paragraph 186, add the following:

“Labor will support the right of lesbian, gay, bisexual and transgender people not to be discriminated against by strengthening the protections currently contained in the Sex Discrimination Act.

Labor will remove the extremely broad exceptions which are granted to religious organisations in sub-section 37(1)(d) of the Act, and to religious schools in section 38, because LGBT people deserve the right not to be discriminated against in the public sphere, which includes health, education, aged care and other community services.”

Explanation

I have included this recommendation first both because I believe it will likely be the last major LGBTI law reform to be achieved in Australia, and because there are multiple references to the right to non-discrimination, including in the workplace, which are scattered throughout the National Platform – Consultation Draft (for example, in Chapter 5: Decent jobs with fair pay and conditions, at paragraph 21 on page 80: “Labor believes in protecting people from discrimination in obtaining and keeping employment” and in Chapter 10: Strong democracy and effective government, at paragraph 58 on page 194: “[s]trengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation and gender identity.”)

If these references are to mean anything – if Labor is genuine about tackling the discrimination which is all-too-frequently experienced by lesbian, gay, bisexual and transgender people – then the Sex Discrimination Act must be amended to ensure LGBT people cannot be discriminated against either as employees, or as people accessing services, across a wide range of the public sphere (health, education, community services, and aged care – as employees only, see below).

The exceptions which would remain in sub-section 37(1) of the Sex Discrimination Act would guarantee that employment within religious bodies like churches, but not in schools, hospitals or other community services, would remain exempt from the requirement not to discriminate, as would the conduct of religious ceremonies, thereby retaining the fundamental freedom of religion.

[Note: The recommendation relates only to LGBT and not LGBTI discrimination because the religious exceptions contained in the Sex Discrimination Act do not operate with respect to intersex status. Nevertheless, it should be highlighted that all state and territory anti-discrimination laws, outside Tasmania, also need to be amended to include intersex status as a protected attribute in the same way as the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.]

Further improve LGBTI equality in aged care services

Recommendation 2: Retain the commitment to LGBTI inclusion in aged care services, as set out in Chapter 6: New opportunities for an ageing Australia, at paragraph 35 on page 95, but add an additional point:

“To help promote a genuinely inclusive aged care environment, Labor will remove exceptions from anti-discrimination law which currently allow religious-operated aged care facilities to discriminate against lesbian, gay, bisexual and transgender employees.”

Explanation

The previous Federal Labor Government had a strong record in LGBTI aged care, in delivering the historic first-ever National LGBTI Ageing and Aged Care Strategy, and in ensuring that, under the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 LGBTI people accessing aged care services would have protection from discrimination.

However, in order to create a genuinely inclusive environment in aged care facilities, and to respect the rights of LGBT employees in the aged care sector, these protections should be expanded to also cover employees (noting that intersex employees should already be covered by the existing law).

Support programs to prevent bullying and harassment of LGBTI students

Recommendation 3: In Chapter 7: A world-class education for all Australians, amend paragraph 10 on page 99 to read:

“The right to education includes an environment free from bullying and harassment, including racist, sexist, homophobic, biphobic, transphobic or intersexphobic bullying and harassment”, and insert a new paragraph in the same Chapter:

“Labor will continue to support and fund national programs to address homophobia, biphobia, transphobia and intersexphobia in schools.”

Explanation

The language change to paragraph 10 is important because, while homophobia is sometimes used as a catch-all for all forms of discrimination against LGBTI people, it is best practice, more accurate and more inclusive to also include references to biphobia, transphobia and intersexphobia.

The previous Federal Labor Government provided initial funding to the National Safe Schools Program in 2013, which is a valuable initiative in addressing LGBTI harassment and bullying, and improving LGBTI inclusion. Given the ongoing challenges in this area, a new Labor Government should commit to continue to support programs like Safe Schools.

Ensure LGBTI content is included in the National Health & Physical Education Curriculum

Recommendation 4: In Chapter 7, after paragraph 37 on page 103, insert a new paragraph:

“Labor acknowledges that the curriculum development process has produced a National Health & Physical Education (HPE) Curriculum that excludes content that is vital to meet the needs of LGBTI students and young people. Labor commits to reviewing the HPE curriculum and producing a new HPE curriculum, that genuinely includes LGBTI students and content, as well as enhanced and inclusive sexual health education.”

Explanation

Chapter 7: A world-class education for all Australians notes, at paragraph 6 on page 98, that “[e]very student in every school should have access to a quality education that meets their individual needs.”

Unfortunately, the National HPE Curriculum that has been developed under successive Governments fails to meet the needs of LGBTI students. It does not even use the words lesbian, gay or bisexual (and does not use the words transgender or intersex in the year level descriptions which set out what is to be taught), and, despite an ‘aspirational statement’ about student diversity, does not guarantee that content relevant to their needs will be taught in classrooms around the country.

The HPE curriculum also fails to ensure that all students, including LGBTI students, will receive comprehensive and inclusive sexual health education. Providing comprehensive sexual health education is also necessary to take action on the statement in Chapter 8: A health system for all, at paragraph 103 on page 132, that “[l]abor recognises the importance of renewing efforts to reduce the spread of HIV/AIDS, sexually-transmitted infections, and blood borne viruses, in partnership with the non-government organisation sector and driven by expert evidence.”

Labor should commit to rectifying these glaring omissions (relating to LGBTI students and content, and sexual health education) in the HPE curriculum.

Abolish the National School Chaplaincy Programme

Recommendation 5: In Chapter 7, after paragraph 44 on page 103, insert a new paragraph:

“Labor will abolish the National School Chaplaincy Programme and redirect moneys saved to support government schooling.”

Explanation

In Chapter 7, paragraph 44 on page 44 starts: “[e]very Australian in every community should have access to high-quality free, secular government schooling.”

The National School Chaplaincy Programme (NSCP), which involves employing people in government (and non-government) schools based on religious affiliation, is in direct contravention of this principle and is a serious misallocation of public resources.

Abolishing the NSCP will:

  • Recommit the Labor Party to supporting genuinely ‘free & secular’ education,
  • Provide an additional $250 million, over four years, to support government schooling, and
  • Remove the risk which some parts of the National School Chaplaincy Programme present to LGBTI students and young people.

Remove out-of-pocket medical expenses for transgender Australians

Recommendation 6: In Chapter 8: A health system for all, insert a new paragraph:

“Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirmation surgery. Cost should not be a barrier to accessing these services and/or surgery, and Labor commits to removing, wherever possible, out-of-pocket health expenses for transgender people incurred in relation to their gender identity.”

Explanation

In Chapter 8, at paragraph 9 on page 113, it says “[a] fairer and more equitable society is one in which all Australians are able to access high-quality and affordable health care, including any necessary medicines, on the basis of health care need, not their capacity to pay.” It is difficult to see a better application of this principle than in removing out-of-pocket expenses for transgender Australians in accessing health services and/or gender affirmation surgery, incurred in relation to their gender identity.

This goes beyond the commitment at paragraph 78 on page 127 (“[c]ontinue to ensure that Medicare and the PBS supports anti-discriminatory policies for lesbian, gay, bisexual, transgender and intersex Australians and that same sex couples and their families are not discriminated against in their access to Medicare and the Pharmaceutical Benefits Scheme”), because this commitment is about more than simply ‘non-discrimination’, it is about removing price barriers to essential services.

Improve mental health support for LGBTI people, including LGBTI young people

Recommendation 7: In Chapter 8, at paragraph 74 on page 126, amend the last dot point to read:

  • “Act to reduce the rate of youth suicide in rural communities, especially among young men, young Aboriginal and Torres Strait Islander people and young lesbian, gay, bisexual, transgender and intersex people” and

amend the third dot point at paragraph 78 on page 127 to read:

  • “Continue to support programs aimed at prevention of suicide, and for improved mental health, for high risk groups, including lesbian, gay, bisexual, transgender and intersex Australians.”

Explanation

The first amendment is to ensure that any specific regional, rural and remote health policies which are aimed to reducing youth suicide should explicitly include LGBTI young people in these regions as a high-risk group.

The second amendment is recognition that mental health issues for LGBTI people are bigger than ‘just’ suicide prevention, and must include programs for improved mental health more generally.

Support programs to address LGBT homelessness

Recommendation 8: In Chapter 9: A fair go for all, under heading “Homelessness” on page 156, add the following:

“Labor acknowledges the young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.”

Explanation

Lesbian, gay, bisexual and transgender youth experience much greater rates of homelessness than their cisgender heterosexual counterparts. This is in part caused by familial rejection, through challenges posed by school-based, or societal, homophobia, biphobia and transphobia, as well as other factors.

Given the specific causes of LGBT youth homelessness, and the need for cultural sensitivity in responding to the needs of homeless lesbian, gay, bisexual and transgender young people, Labor should support specific programs to deal with this issue.

[Note: I am unaware of research on intersex youth homelessness. Obviously, if such research exists, intersex young people should be added to this recommendation.]

Improve recognition of LGBTI parents in domestic law

Recommendation 9: In Chapter 9: A fair go for all, after paragraph 172 on page 165, add the following:

“Labor will seek national agreement on the recognition of lesbian, gay, bisexual, transgender and intersex parents, based on the principle that LGBTI-inclusive couples should be able to access assisted reproductive technology, to adopt, and to enter into domestic surrogacy arrangements, on an equal basis to cisgender heterosexual couples in every Australian State and Territory.”

Explanation

LGBTI-inclusive families continue to confront a patch-work of different laws around the country, with their ability to lawfully found a family dependent upon where they live.

A newly-elected Labor Government should seek to end this unacceptable situation, and pursue national agreement on consistent recognition of parenting laws, which do not discriminate on the basis of sexual orientation, gender identity or intersex status.

Ensure LGBTI parents have equality in inter-country adoption

Recommendation 10: In Chapter 9, after paragraph 172 on page 165, also add the following:

“Where adoption arrangements already exist between Australia and other countries, Labor will seek to ensure these arrangements are expanded to allow for inter-country adoption by LGBTI parents on an equal basis to cisgender heterosexual people.

Where Australia seeks to enter into new inter-country adoption arrangements, Labor will only sign such arrangements if they treat LGBTI parents equally.”

Explanation

The inter-country adoption arrangement between Australia and South Africa, negotiated in 2014, is the first Australian agreement which allows for LGBTI couples to adopt on an equal basis to non-LGBTI couples.

There is no reason why existing inter-country adoption arrangements should not be renegotiated by a newly-elected Labor Government to treat Australian couples equally irrespective of sexual orientation, gender identity or intersex status, or why the Australian Government should enter into any new agreements unless they are non-discriminatory on the basis of these attributes.

[Note: This is neither an endorsement nor repudiation of the practice of inter-country adoption, merely a resolution which seeks to ensure that, where it exists, it must treat lesbian, gay, bisexual, transgender and intersex Australians fairly.]

Improve LGBTI Inclusion in Sport

Recommendation 11: In Chapter 9: A Fair go for all, under the heading “Sport”, on page 178, after paragraph 265, insert the following paragraphs:

  • “Labor acknowledges the impact of homophobia and biphobia in sport, both on and off the field, and is committed to improving the inclusion of lesbian, gay and bisexual athletes and spectators.
  • Labor acknowledges the serious discrimination experienced by transgender participants in sport, as well as by transgender people off the field, and will work with the Australian Human Rights Commission on measures to address this discrimination.
  • Labor also acknowledges the serious discrimination experienced by intersex athletes, and especially women athletes with intersex variations, as well as intersex people off the field, and will also work with the Australian Human Rights Commission on measures to address this discrimination.”

Explanation

Recent work, by the Australian Human Rights Commission, Out on the Fields and other organisations, has demonstrated the significant issues surrounding homophobia, biphobia, transphobia and intersexphobia in sport. There has already been some work to address homophobia and biphobia, on and off the field, and this work should continue (and be supported).

However, the issues which confront transgender and intersex athletes are greater and, to a large extent, remain unaddressed. These specific challenges should be prioritised by the AHRC and others in coming years, to achieve acceptance for all people in sport, irrespective of sexual orientation, gender identity or intersex status.

Appoint a Spokesperson for LGBTI Equality

Recommendation 12: In Chapter 10: Strong democracy and effective government, on page 194 under the heading “LGBTI place in a stronger democracy”, add the following:

“Labor will appoint a spokesperson for lesbian, gay, bisexual, transgender and intersex equality and, in Government, will establish an office for LGBTI equality within the Department of Prime Minister and Cabinet.”

Explanation

Federal Labor should follow the lead of the recently elected Victorian Labor Government, which has appointed both the first ever Australian Minister for Equality, the Hon Martin Foley MP, and established an Office for Equality within the Victorian Department of Premier and Cabinet.

These moves help to ensure that LGBTI issues have a central point of coordination within Government, and are necessary to prevent LGBTI issues from being left off the political agenda – something which still happens far too often.

Establish an LGBTI Ministerial Advisory Committee

Recommendation 13: In Chapter 10, on page 194, amend the last dot point of paragraph 58 to read:

“Support and engage with communities and stakeholders to provide input into government decision-making, and establish a lesbian, gay, bisexual, transgender and intersex ministerial advisory committee.”

Explanation

There is no need for the equivocation which is currently contained in the National Platform – Consultation Draft on this issue (which reads “including consideration of a … ministerial advisory committee”). This should simply be done, and, together with the appointment of a Spokesperson for LGBTI Equality and Office for LGBTI Equality (recommended above) would provide the overall framework for effective, ongoing engagement between a Labor Government and the LGBTI community.

Appoint a Sexual Orientation, Gender Identity and Intersex Status Commissioner within the Australian Human Rights Commission

Recommendation 14: In Chapter 10, on page 194 under heading “LGBTI place in a stronger democracy”, add the following:

“Labor will amend the Sex Discrimination Act to establish a stand-alone Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, with equivalent powers, responsibilities and funding to the Sex Discrimination Commissioner.”

Explanation

There is currently no statutory figure within the Australian Human Rights Commission with responsibility for LGBTI issues – instead, these functions are performed on a part-time basis by the Human Rights Commissioner (aka the ‘Freedoms Commissioner’) Tim Wilson.

LGBTI issues, and homophobic, biphobic, transphobic and intersexphobic discrimination, are sufficiently serious to warrant the establishment of a stand-alone Commissioner, with similar powers, responsibilities and funding to the existing Sex Discrimination Commissioner (and this would again match the policies of the recently-elected Victorian Labor Government).

Introduce LGBTI Anti-Vilification Protections

Recommendation 15: In Chapter 10: Strong democracy and effective government, at paragraph 96 on page 199, amend the paragraph to read:

“Labor also recognises that homophobic, biphobic, transphobic and intersexphobic harassment by the written or spoken word causes actual harm, not mere offence, to people with a history of suffering discrimination and prejudice, and particular harm to young same-sex attracted, gender-questioning and intersex people, and considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. As such, Labor will introduce anti-vilification protections for lesbian, gay, bisexual, transgender and intersex Australians, which are based on and equivalent to existing racial vilification protections in the Racial Discrimination Act.”

Explanation

The discussion at paragraphs 95 and 96 is already strong, noting that “Labor stood with the community to successfully oppose the Government’s attack on the Racial Discrimination Act” as well as acknowledging the harms of homophobic harassment, particularly on vulnerable young people.

However, the commitment could be made stronger, both to be more inclusive (by genuinely include bisexual, transgender and intersex people), and to contain a clear and specific commitment to introduce anti-vilification laws. After all, homophobia, biphobia, transphobia and intersexphobia are just as offensive, and harmful, as racism –which means LGBTI Australians also deserve the same protections under the law.

Include LGBTI people in foreign aid

Recommendation 16: In Chapter 11: Australia’s place in a changing world, at paragraph 62 on page 210, amend the paragraph to read:

“Labor’s overseas aid efforts will focus on advancing human rights while addressing important development challenges, including ensuring people have the opportunity to lead healthy and prosperous lives regardless of gender, sexual orientation, gender identity, intersex status, ethnicity, religion or cultural beliefs and with access to shelter, education food and clean water, health and sanitation, and emergency services support.”

Explanation

This paragraph on foreign aid should be amended to include LGBTI people to match the strong statement on support for international LGBTI human rights, which is included at paragraph 31 on page 206 of the same Chapter.

Intersex Recommendations

I support the recommendations made by OII Australia (Organisation Intersex International Australia) in response to the National Platform – Consultation Draft, namely (renumbered here):

Recommendation 17: Inclusion of “intersex status” Change each instance of “sexual orientation and gender identity” to “sexual orientation, gender identity and intersex status” throughout the document.

Recommendation 18: Add specific content about intersex health and human rights Add content on intersex health to the section on “Lesbian, gay, bisexual, transgender and intersex health”, including the following objectives:

  • The deferral of non-necessary medical intervention on infants and children with intersex variations until such times as the person concerned can give informed consent.
  • The prohibition of modifications to sex characteristics undertaken for social rationales, without informed consent.
  • Ensuring that intersex persons’ right not to undergo sex assignment treatment is respected.

Recommendation 19: Create a specific institutional framework In “LGBTI place in a stronger democracy”, remove references to intersex people in discussion about a National Gender Centre. In place of this, add to the section on “Lesbian, gay, bisexual, transgender and intersex health” the following:

  • Fund national intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.

Recommendation 20: End PBS and Medicare discrimination In paragraph 78, recognise that current access to PBS and Medicare remains discriminatory in some contexts. Examples include access to testosterone by women with Complete Androgen Insensitivity Syndrome, and other people with gender markers other than male.

Recommendation 21: End discrimination against intersex women athletes Paragraph 62 should include a commitment to end discrimination against women athletes with intersex variations.

Recommendation 22: Ensure consent and proportionality in improvements to sex or gender markers on identification documents In paragraph 62:

  • Ensure proportionality in the use of sex and gender markers on official documents so that any presence of such markers fulfils a genuine and proportionate need.
  • Ensure that all people with intersex variations are able to exercise autonomy regarding sex/gender markers, and obtain identification options that match their sex characteristics and/or gender identities, as preferred.

As indicated above, I support all of these recommendations (and have incorporated the sport recommendation in my own recommendations, earlier). However, I would like to particularly emphasise OII recommendation 2 (renumbered as recommendation 18 here), which seeks to end the gross violations of human rights which were highlighted by the Senate Community Affairs Committee’s report on “Involuntary or coerced sterilization of intersex people in Australia” in October 2013, and also to note that the failure of Governments to act on these recommendations, almost two years later, should be a national scandal.

Refugee Recommendations

I support all of the recommendations made by Labor for Refugees.

Recommendation 23: In particular, I support their recommendation to amend Chapter 9: A fair go for all, paragraph 225 at page 173, by deleting “To support Australia’s strong border security regime, Labor will maintain:

  • An architecture of excised offshore places; and
  • The non statutory processing on Christmas Island of persons who arrive unauthorised at an excised place, except where other arrangements are entered into under bilateral and regional arrangements”

and replacing it with the following:

  • “Labor will dismantle the architecture of excision and end the associated non-statutory processing or applications for protections visas.
  • Labor will close the detention centres in Nauru and Manus Island.”

Explanation I am opposed to the offshore detention, processing and resettlement of refugees, and believe that the system of offshore detention centres, in Nauru and Manus Island, and the policy of resettlement in Nauru and Papua New Guinea, is cruel and inhumane, and a gross violation of the human rights of people who are simply seeking Australia’s protection.

I am also opposed to these policies as an LGBTI advocate and activist, and note that male homosexuality is currently criminalised by both the Nauru and Papua New Guinea Governments. This makes these environments unsafe for any refugee who is lesbian, gay, bisexual, transgender or intersex.

As such, if the above Labor for Refugees recommendation with respect to paragraph 225 is not agreed, I would propose the following recommendation:

Recommendation 24: “To add to Chapter 9: A fair go for all: Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.”

Irrespective of whether the original or alternative recommendations (or neither) are adopted, I would also make the following additional recommendation:

Recommendation 25: “To add to Chapter 9: A fair go for all: Labor will not return lesbian, gay, bisexual, transgender of intersex refugees to countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.”

Changes to the Party Rules

1. Pre-selection of LGBTI candidates

Rule Change 1: The Australian Labor Party Rules should be amended to include the following:

“Labor aims to improve the representation of lesbian, gay, bisexual, transgender and intersex people in the nation’s parliaments. As such, Labor aims to pre-select a minimum of 2% of candidates who are lesbian, gay, bisexual, transgender or intersex for the next Federal Election, scheduled for 2016.

This equates to a minimum of 3 candidates for the House of Representatives (out of 150), and 1 candidate for the Senate (out of a maximum of 40). If there is a double dissolution election, this would increase to a minimum of 2 candidates for the Senate.

Of the pre-selected candidates, at least half should be in ‘winnable’ seats and/or positions – equating to at least 2 candidates in total at a normal election, and at least 3 candidates in total at a double dissolution election.

If Labor does not meet these targets at the Federal Election scheduled for 2016, the Party President and National Policy Forum are instructed to jointly prepare more substantive Rules changes, to be brought to the next National Conference, establishing a system of affirmative action rules for LGBTI candidates in Federal, State and Territory Elections.

If the Party President and National Policy Forum are unable to reach agreement on proposed Rules, they are required to each bring forward proposed Rules changes on this subject for the consideration of National Conference.”

Explanation

There has never been an openly lesbian, gay, bisexual, transgender or intersex Member of the House of Representatives. From any political Party. And there has never been an identified transgender or intersex member of either chamber.

The Labor Party has also only ever had two out LGBTI Senators. There is currently only one identified LGBTI member of a Federal ALP caucus of 80. This stands in marked contrast to comparable Parliaments in Western democracies – with at least 32 lesbian, gay and bisexual MPs elected in the recent UK election.

The Opposition Leader, the Hon Bill Shorten MP, was correct to identify the historic under-representation of LGBTI people in Parliament as an issue when he ran for Party Leader in September and October 2013, and he was right to suggest that targets and/or quotas should be considered as a possible solution to the marginalisation of LGBTI people from elected politics in Australia.

This proposal is an interim step, announcing clear goals for the 2016 Federal Election, targets which, at 2%, could be described as incredibly modest. However, if the ALP is unable to meet even these modest targets then the Party President and National Policy Forum should be required to prepare further Rules changes, including affirmative action rules for LGBTI candidates, to be presented to the next ALP National Conference, and, if they are unable to agree, to bring forward two sets of proposals.

[Note: This is not to preclude other proposals for increased representation of different under-represented groups in Parliament, including Aboriginal and Torres Strait Islander people, especially given the Australian Labor Party has still only ever had one indigenous member of Federal Parliament.]

2. Introduce a binding vote for Marriage Equality

Rule Change 2: Abolish the following paragraph at page 262 of the current ALP Platform and Rules:

“Same sex marriage Conference resolves that the matter of same sex marriage can be freely debated at any state or federal forum of the Australian Labor Party, but any decision reached is not binding on any member of the Party.”

Explanation

The existing Platform’s policy commitment to marriage equality, and the proposed policy commitment in the National Platform – Consultation Draft (in Chapter 9: A fair go for all, at paragraph 190 on page 167: “Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life”) is, of course, welcome.

However, this commitment is undermined by Rules which effectively make an issue of fundamental equality and human rights ‘optional’ for Labor MPs and Senators. This is wrong in principle, it is wrong for a Party based on solidarity and collective action, and it is a position which has actively wronged Australia’s LGBTI community, by further delaying a reform which, had the 2011 National Conference made the right decision, should have been passed in 2012.

It’s time the ALP acknowledged these wrongs, by removing the conscience vote on this issue from the Party’s Rules and adopting a binding vote in favour of marriage equality. #ItsTimeToBind

ALP Party President, and new Senator for NSW, Jenny McAllister, who is co-ordinating the review of the ALP Platform.

ALP Party President, and new Senator for NSW, Jenny McAllister, who is co-ordinating the review of the ALP Platform.