Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Update: 15 January 2017

 

Unfortunately, this legislation was voted down by the Victorian Legislative Council on 6 December 2016.

 

As reported by The Age here (‘Coalition and conservative crossbenchers unite to vote down equal rights bills’), the Liberal and National Parties rejected the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, describing it as an attack on ‘religious freedom’.

 

Of course, it was nothing of the sort – instead it was a modest (some might argue too modest) reform that would have simply required religious schools and other religious bodies to demonstrate that any discrimination against LGBT employees was because of an ‘inherent requirement’ of the relevant job. Nothing less, and nothing more.

 

But even that was too much for Coalition MLCs, meaning lesbian, gay, bisexual and transgender teachers at religious schools, and LGBT employees at other religious organisations, can continue to be discriminated against for at least another two years, solely because of who they are and irrespective of the responsibilities of the actual role they are performing.

 

Hopefully, Victoria’s LGBTI community remembers this shameful sell-out by the Liberal and National Parties when they cast their ballots on 24 November 2018 – and that the next Parliament strengthens the state’s LGBTI anti-discrimination laws as a matter of priority in early 2019.

 

Original Post:

 

Ten days ago I wrote about the first of two LGBTI law reforms put forward by the Andrews Labor Government that are currently before the Victorian Parliament – the Births, Deaths and Marriages Registration Amendment Bill 2016.

This post will discuss the second – the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

As the title suggests, this Bill will amend the religious exceptions currently contained in the Equal Opportunity Act 2010, making it more difficult, in certain circumstances, for religious bodies and schools to discriminate against employees on the basis of their sexual orientation or gender identity[i].

It does this by reintroducing the ‘inherent requirements test’ for employment by religious bodies or schools, which was part of the Act as passed in 2010, but which was subsequently repealed by the Baillieu Liberal-National Government in 2011 before it commenced operation.

This test is set out in clauses 3 and 4 of the Bill, which would amend the current exceptions applying to religious bodies and religious schools featured in sections 82 and 83 respectively:

“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a religious body where-

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

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

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”[ii]

As you can see from this proposed wording, these are very modest changes. All the Bill does is to remove the ‘blanket’ ability for religious bodies and schools to discriminate against all employees on the basis of these attributes, replacing it with a slightly narrower ability whereby, in order to discriminate, the body or school must show that such discrimination is required because of the particular position involved.

As described by Attorney-General Martin Pakula in his second reading speech:

“A large number of people are employed by or seek to be employed by religious bodies and schools in Victoria, in a range of different positions. In these circumstances, it is fair to ask these organisations to demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute…

“What the test will do, and appropriately so, is require those organisations that do seek to discriminate in employment on religious grounds to demonstrate the necessary connection between their particular religious beliefs and the need to discriminate.”

pakulamartin58250

Victorian Attorney-General Martin Pakula

Despite the extremely modest nature of the Bill, it has nevertheless attracted strong opposition from the Australian Christian Lobby[iii] and the Liberal and National Opposition, meaning that, although it has cleared the Legislative Assembly where the Government has the numbers, it is unclear whether it will be passed in the Legislative Council where the Government does not, and where it is expected to be debated later this week (with Victorian Parliament sitting from Tuesday 11 October).

Given this, I have sent a short email to all members of the Victorian upper house, encouraging them to pass this Bill, with the text included at the end of this post.

Before we get to that, however, an important caveat. Regular readers of this blog would be aware that I am opposed to religious exceptions beyond those that are necessary for the appointment of religious office-holders, and for the observance of religious ceremonies.

Indeed, these views formed part of my criticisms of the Victorian anti-discrimination framework, expressed earlier this year in my post What’s Wrong With Victoria’s Equal Opportunity Act 2010?[iv]

On this basis, I would obviously support amendments to the religious exceptions contained in the Act that go beyond what has been proposed by the Andrews Labor Government. This would, at the very least, include extending the ‘inherent requirement test’ to protect those people accessing services, including education, from these religious bodies and schools, in addition to employees.

However, we have already seen an unsuccessful attempt by the Victorian Government, this term, to restrict the rights of religious bodies to discriminate against people accessing services – it sought to prevent discrimination against same-sex couples by religious adoption agencies as part of the broader introduction of adoption equality.

Those particular amendments to religious exceptions were defeated in the Victorian Legislative Council, while the overall reform passed.

In this context, it is difficult to see how any amendments to religious exceptions that go further than those currently proposed would be passed by the upper house[v]. Indeed, the fate of the narrow changes that are contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 still seems precarious.

As a result, I have chosen to send this short email calling for these reforms to be passed, as a minimum standard, and in the hope that more comprehensive changes may be able to be made by a subsequent parliament, one where (hopefully) the influence of the extreme right is less powerful[vi].

**********

Monday 10 October 2016

Dear Member of the Victorian Legislative Council

Please Support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016

I am writing to call on you to support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 when it comes before the Legislative Council.

This Bill is an important reform that will better protect lesbian, gay, bisexual and transgender (LGBT) employees, and prospective employees, from discrimination that has absolutely nothing to do with their ability to do their jobs.

As noted by Attorney-General Martin Pakula in his second reading speech, these reforms simply ask religious bodies and schools to “demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute.”

These are modest changes, and it is difficult to see how the introduction of an ‘inherent requirement test’ can be argued against.

In practice, voting against the reforms contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is effectively saying that LGBT people can be discriminated against simply because of their sexual orientation or gender identity, even where there is absolutely no reason why they cannot perform a particular role.

I do not believe such an extreme ideological position is sustainable in 2016. I sincerely hope you agree, and in doing so, vote for this Bill.

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

Sincerely,

Alastair Lawrie

Footnotes:

[i] Noting that intersex status is not a protected attribute under Victorian law.

[ii] The wording of the amendment in relation to religious schools is largely similar.

[iii] Media Release, Is this kind of Government interference really warranted?, 1 September 2016.

[iv] Also expressed through my Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016.

[v] Perhaps the only complementary change that stands some chance of success in the current political environment would be the introduction of a provision requiring religious bodies and schools seeking to use the ‘inherent requirement exception’ to advertise the fact it will discriminate against LGBT employees with respect to particular positions, rather than simply asserting this ability as part of any defence to discrimination proceedings. However, determining whether such an amendment would be passed is best left to Victorian LGBTI advocates.

[vi] In drafting this email I have been careful to avoid language that rules out the need for further reform, or that would contradict amendments to the Bill, such as those proposed by the Victorian Greens (which would limit the ability of religious bodies or schools to discriminate to a greater degree), even if it is my personal view that such amendments are unlikely to be successful at this time.

The National Curriculum Review Fails to Support LGBTI Students

The Final Report of the Review of the Australian Curriculum, conducted by Ken Wiltshire and Kevin Donnelly, was released on Sunday 12 October 2014, accompanied by the Commonwealth Government’s Response (both documents can be found at the following link: <http://www.studentsfirst.gov.au/review-australian-curriculum ).

Based on initial reporting (including this article by Samantha Maiden in The Sunday Telegraph <http://www.dailytelegraph.com.au/news/nsw/teenagers-should-be-given-lessons-on-sex-and-drugs-national-curriculum-report-states/story-fni0cx12-1227087475187 ), you could be forgiven for believing that the outcome of the Review was, overall, a positive one for LGBTI students, with a commitment to include content relevant to their needs.

Unfortunately, however, a closer examination of the Final Report, and the Government’s Response, reveals that it is nothing more than another missed opportunity, yet another failure to ensure that the national Health & Physical Education (HPE) curriculum caters to the needs of all students, including those of different sexual orientations, gender identities and intersex status.

To understand just how far short of this standard the ‘Wiltshire & Donnelly’ Review falls, we must first look back at the development of the HPE curriculum. Drafted by the Australian Curriculum, Assessment & Reporting Authority (ACARA) during 2012 and 2013, the HPE curriculum was subject to two rounds of formal public consultation, before the current draft was submitted for the consideration of COAG Education Ministers late last year.

Despite a number of submissions highlighting the HPE curriculum’s failure to genuinely include LGBTI students and content (including two from yours truly: <https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ and <https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/ ), and even after some minor tinkering around the edges (with a couple of welcome references to ‘homophobia’ and ‘transphobia’ added), the current draft of the HPE curriculum does not guarantee that all students will learn what they need to know to be comfortable in who they are, and to stay safe.

In particular, as I made clear in my submission to the National Curriculum Review itself, the draft HPE curriculum:

  • Has significant problems in terms of terminology – for example, it does not even use the words ‘lesbian’, ‘gay’ or ‘bisexual’ once in the entire document.
  • Includes a fine-sounding commitment to student diversity that is almost immediately undermined by allowing “schools flexibility to meet the learning needs of all young people” – and which is especially poor when compared with the first draft that clearly stated that “same-sex attracted and gender diverse students exist in all Australian schools”.
  • Does not ensure students receive comprehensive sexual health education – with no year band descriptions providing a minimum level of information about sexually transmissible infections, and no references to condoms either, and
  • Completely excludes HIV and other BBVs, like hepatitis B and C – despite the fact that, more than 30 years into the HIV epidemic in Australia, the number of transmissions is rising (with one potential cause a lack of comprehensive and inclusive sexual health/BBV education for students).

[NB My full submission to the National Curriculum Review is available here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/ ].

The choice to appoint noted homophobe Kevin Donnelly (see my letter to Minister Pyne calling for Mr Donnelly to be sacked on that basis: <https://alastairlawrie.net/2014/01/11/letter-to-minister-pyne-re-health-physical-education-curriculum-and-appointment-of-mr-kevin-donnelly/ ) to review what was already a poor document was obviously a major concern.

And I will be the first to admit that the Final Report of the National Curriculum Review, including its recommendations about the HPE curriculum, is not as bad as was initially anticipated. But just because it did not live down to some exceptionally low expectations, does not mean that the outcome for the HPE curriculum, and its potential impact on LGBTI students, was in any way positive.

The first major failing of the National Curriculum Review’s approach is that it appears to concede, without mustering much opposition, that, far from being a national minimum standard, the HPE curriculum is essentially optional.

For example, it notes that “one jurisdiction said it would refuse to implement the content in sexual orientation” (which appears to be Western Australia), while “a few schools are implacably opposed to the inclusion of such material [sexuality education] and some have refused to teach it”, and “[o]ne organisation claimed they would not teach it as prescribed as it did not fit in with their religious values.”

Presumably, that final organisation was the National Catholic Education Office (NCEC), with the Final Report noting that “the submission by the NCEC signals that Catholic schools reserve the right to implement the Australian Curriculum according to the uniquely faith-based and religious nature of such schools: For example, as usual in all Catholic schools, the new Health and Physical Education Curriculum will need to be taught in the context of a Personal Development program informed by Catholic values on the life and personal issues involved” (emphasis in original).

Which means that Catholic Schools – which now account for more than 1-in-5 students across Australia – (presumably) Western Australian schools, and select other schools, have all refused to implement a document that wasn’t even genuinely LGBTI-inclusive to start.

The second major failing, or in this case potential failing, of the National Curriculum Review’s approach is that it supports “the need to reduce the amount of content overall”, noting that “[s]ubmissions and consultations and the opinion of the subject matter specialist suggest that it is overcrowded and needs some slimming down and some restricting of year-level content. Some of the content could well be addressed more in school-based activity.”

Indeed, one of its key recommendations is that “[t]he core content should be reduced and a significant portion should become part of school-based curriculum…” While this recommendation isn’t explicitly linked to LGBTI-related content, there is now a real risk that, in finalising the HPE Curriculum, either at the COAG Education Ministers meeting in December, or subsequently during 2015, what little LGBTI-inclusive material there is may be on the chopping block. This is something that will need to be monitored closely in coming months.

The third major failing of the National Curriculum Review in this area is that, rather than mandating that every student, in every school, receives a minimum level of LGBTI-related education, it instead supports ever greater levels of ‘flexibility’ in terms of what is delivered in the classroom (noting that that the original HPE curriculum already supported ‘flexibility’ in this area).

For example, in one particularly telling paragraph it notes “[o]ther schools, including Christian schools, have advised us that they are comfortable with the inclusion of such content [sexuality education] in the health and physical education curriculum, provided there is flexibility so that they are able to teach it at the age level they deem appropriate, and by mature teachers rather than younger ones who may feel challenged in this arena. We think this is the way forward.”

Which, upon analysis, is actually a pretty bizarre statement – not just because it shouldn’t matter how old a teacher is, as long as they are appropriately qualified, but also because the National Curriculum Review is essentially agreeing to schools disregarding the evidence of when it is best to provide sexuality/sexual health education to students. Instead, the Review supports allowing schools to teach this content at whatever age they wish, without any justification, and presumably delaying it beyond the age at which it would be most valuable.

The recommendation in this area goes even further: “[t]he two controversial areas of sexuality and drugs education should remain, but schools should be given greater flexibility to determine the level at which these areas are introduced and the modalities in which they will be delivered…” (emphasis added). Which means that even how sexuality education is taught is apparently negotiable.

The net outcome of the National Curriculum Review, at least as it concerns Health & Physical Education, is this: A curriculum that already largely excludes LGBTI students and content, is, in practice, essentially optional, with at least one jurisdiction, one religion-based school system, and other individual schools all opting-out. What LGBTI-related subject matter there is remains under threat as the content is ‘slimmed down’ in coming months, while those religious schools that do teach ‘sexuality education’ will have the ‘flexibility’ to choose when it is taught, how it is taught and even by whom it is taught.

Which, to me at least, sounds like the exact opposite of what a national curriculum should be – and demonstrates just how big a missed opportunity this entire process has been.

A national Health & Physical Education curriculum should be a document that recognises that, no matter what state they reside in, and irrespective of the type of school they attend (government, religious or private), all LGBTI students have the fundamental right to an inclusive education.

The existing HPE curriculum does not even come close to recognising that right, and the Final Report of the Australian Curriculum Review will not deliver it, either. That is why we must give the ‘Wiltshire & Donnelly’ Review a fail – because it fails to support LGBTI students.

Two final points. First, at least one of the explanations for why the National Curriculum Review has ultimately failed LGBTI students lies in the fact that it actively bought into the notion that the area of ‘sexuality education’ is somehow controversial. Well, that is simply not true.

Just because there are people who disagree with something does not make it controversial. Just because some governments, religious organisations, individual schools and even some parents do not think students should be taught material because it is LGBTI-inclusive, does not mean their opinion is valid.

None of their individual or collective prejudices about sexual orientation, gender identity or intersex status trump the rights of LGBTI students to hear about themselves in the classroom, and to be taught that who they are is okay. Nor do the so-called interests of these groups override the need to reduce the number of suicides of young lesbian, gay, bisexual, transgender and intersex people, an ongoing tragedy in schools and communities across the country.

Which brings me to my final point. Some people believe that the inclusion of the following paragraph indicates that the Curriculum Review is supportive of LGBTI students:

“Expert medical opinion is clear that, along with the earlier maturation of young people, there is currently a serious crisis – including youth suicides – occurring in Australian society in this domain as a result of a lack of forums and spaces where young people can discuss such issues, including sexuality. The school setting, on the assumption that the curriculum is balanced and objective in dealing with what are sensitive and often controversial issues, offers one of the few neutral places for this to occur.”

Of course, I agree with the majority of this statement (reference to ‘controversial’ aside) – as would many advocates operating in this area. But, if you are to raise the spectre of youth suicide, and LGBTI youth suicide in particular, but then fail to deliver a document that would do anything to tackle this crisis, then, Mr Wiltshire and Mr Donnelly, your words aren’t just hollow and tokenistic, they are offensive.

Ken Wiltshire & Kevin Donnelly's National Curriculum Review has failed LGBTI students around the country.

Ken Wiltshire & Kevin Donnelly’s National Curriculum Review has failed to support LGBTI students around the country.

Submission to Australian Human Rights Commission’s Inquiry into Self-Harm and Suicidal Behaviour in Children

The National Children’s Commissioner at the Australian Human Rights Commission has initiated an inquiry into intentional self-harm and suicidal behaviour in children and young people.

Submissions are due on Monday 2 June: you can find more details here: <https://www.humanrights.gov.au/intentional-self-harm-and-suicidal-behaviour-children and send your submissions to nccsubmissions@humanrights.gov.au

As you would expect, my submission has focused on the particular issue of youth suicide amongst young lesbian, gay, bisexual, transgender and intersex people. As with other submissions, I would be interested in feedback about what I have written.

Thanks, Alastair

Ms Megan Mitchell

National Children’s Commissioner

Australian Human Rights Commission

Email: nccsubmissions@humanrights.gov.au

Sunday 1 June 2014

Dear Commissioner

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

Thank you for the opportunity to provide a submission to your inquiry into intentional self-harm and suicidal behaviour in children.

This is an incredibly important topic, and I congratulate you, as National Children’s Commissioner, for utilising your position to shine a spotlight on this national tragedy.

I write this submission as an individual, and not on behalf of any organisation. I also write this as a gay man, and someone who, as a teenager, experienced significant mental health issues, including depression and suicide ideation, because of the severe homophobia that I experienced, particularly in high school.

Given this perspective, in this submission I will focus on the over-representation of young lesbian, gay, bisexual, transgender and intersex (LGBTI) people in intentional self-harm and suicide.

I will also make five recommendations for how to help reduce this over-representation, although obviously this is not an exhaustive list of all the possible ways in which LGBTI youth suicide may be tackled.

Please find my submission attached. I am of course willing to be contacted to discuss anything contained in this submission, at the details below.

Sincerely

Alastair Lawrie

SUBMISSION TO INQUIRY INTO INTENTIONAL SELF-HARM AND SUICIDAL BEHAVIOUR IN CHILDREN

I welcome the acknowledgement, in the Call for Submissions released on 22 April, that self-harm and suicide is a particular issue for LGBTI children and young people.

In particular, the Call for Submissions cites the 2013 Growing Up Queer report, by the Young and Well Co-operative Research Centre, in finding that, of 1,032 children and young people aged 16 to 23, 41% of participants had thought about self-harm and/or suicide, 33% had harmed themselves and 16% had attempted suicide.

These are truly shocking figures – especially that 1 in 6 young lesbian, gay, bisexual, transgender and intersex Australians had attempted suicide. However, despite being shocking, they are not particularly surprising, especially as they replicate similar findings in a range of studies over the past 15-20 years.

The over-representation of self-harm and suicidal thoughts amongst same-sex attracted and gender diverse/questioning young people has been confirmed in all three Writing Themselves In reports, produced by the Australian Research Centre in Sex, Health & Society at La Trobe University in 1998, 2004 and 2010, respectively.

The over-representation of mental health issues within the broader LGBTI community, including among its young people, has also been confirmed by both the original Private Lives: A report on the health and wellbeing of GLBTI Australians study in 2005, and Private Lives 2, released in 2012 (also produced by the Australian Research Centre in Sex, Health & Society).

As well as knowing that intentional self-harm and suicidal behaviour disproportionately affects LGBTI children and young people, we also know the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI youth experience, within their families, amongst their peers, in the media/culture, and especially in their schools.

As reported in Growing Up Queer, “[f]or many, rejection, alienation, bullying, and harassment often led to depression, suicidal ideation, and attempted suicide. Some participants spoke openly about multiple suicide attempts as a result of negotiating their sexual/gender orientation at school, at home, and in their broader communities” (page ix).

The Writing Themselves In 3 study also found a direct link between verbal abuse and physical abuse with thoughts of self-harm. As noted on page 51: “ [a]lmost double the number of young people who had been verbally abused (40%), in comparison to those who had experienced no abuse, had thought of self-harm (22%). Three times those who had been physically abused (62%), in comparison to those who reported no abuse, had thought of self-harm.”

Writing Themselves In 3 also confirmed that “[t]he most common place of abuse remained school with 80% of those who were abused naming school. This continues the trend of increased levels of reported homophobic violence in schools (69% in 1998; 74% in 2004)” (pix, emphasis added).

By knowing the problem – the over-representation of LGBTI children and young people in intentional self-harm and suicidal behaviour – and the cause – the pervasive homophobia, biphobia, transphobia and anti-intersex prejudice which confronts young people, including (but not limited to) at school – we must start to consider the solution.

What are the best ways to protect LGBTI children and young people from discrimination, bullying and abuse on the basis of their sexual orientation, gender identity or intersex status? And what are the best ways to actively promote positive views of, and self-esteem and mental health within, LGBTI children and young people (noting that these are not necessarily the same question)?

The following are five reforms which I believe, if adopted, would help to reduce the continued over-representation of lesbian, gay, bisexual, transgender and intersex young people in self-harm and suicide:

Recommendation 1: Remove anti-discrimination exemptions/exceptions which allow religious schools to discriminate against LGBT students

As indicated above, one of the key areas where LGBTI children and young people are discriminated against is in their schools. Unfortunately, in most states and territories in Australia, religious schools enjoy legal protections which allow them to actively discriminate against LGBT students (and, it should be remembered, to discriminate against LGBT teachers and even parents too).

NB I have excluded intersex students for the remainder of this particular discussion given I understand the two jurisdictions which have explicit intersex anti-discrimination protections – Tasmania and the Commonwealth – do not allow religious exceptions to these protections.

These exemptions allow religious schools to expel LGBT students, to tell same-sex attracted and gender-diverse/questioning students that they are somehow ‘wrong’, ‘unnatural’ or even ‘sinful’, to prohibit certain behaviours or actions on the basis of sexual orientation or gender identity, and to ignore the educational and emotional needs to young LGBT people in general.

An example of this discrimination was found in the ‘Statement of Faith’ by the Penrith Christian School, which stated that: “[w]e believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people” and “[w]e believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial means is contrary to the natural order ordained by God.”

These statements came to light, and attracted significant public scrutiny, only after the then Opposition Leader, the Hon Tony Abbott MP, launched the Coalition’s education policy there during last year’s election campaign. But, it must be pointed out that there is absolutely nothing unlawful for this school, or others like it, to adopt these principles, or to enforce policies based upon them to the detriment of the LGBT students in its classrooms.

This is because in NSW, section 56(d) the Anti-Discrimination Act 1977 states that anti-discrimination coverage for lesbian, gay and trans* people does not protect them against “any… act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

In an absolutely extraordinary extension of these exceptions, the NSW Act also explicitly excludes all “private educational authorities” (including non-religious bodies) from having to comply with any obligation not to discriminate on the basis of homosexuality (section 49ZO(3)) and transgender status (section 39K(3)).

Sadly, despite only being introduced last year, Commonwealth anti-discrimination protections on the basis of sexual orientation and gender identity are also fundamentally undermined by the granting of wide-ranging exemptions to religious organisations.

As well as an equivalent clause to NSW’s section 56(d) – section 38(1)(d) of the Sex Discrimination Act 1984 exempts “any… 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” (although not in relation to aged care) – the Commonwealth Act also includes the following in section 38(3):

“Nothing… renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy 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 order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

In practice, both Commonwealth and NSW law gives effective carte blanche to religious schools to discriminate against, and ignore the genuine needs of, LGBT children and young people. If we are genuinely interested in the mental health and welfare of young lesbian, gay, bisexual and transgender Australians, then these exceptions must be removed.

Those who would argue against such a proposition cite ‘freedom of religion’ as somehow trumping the right of LGBT people to live their lives free from discrimination. Indeed, the then shadow, and now Commonwealth, Attorney-General, Senator the Hon George Brandis, made exactly that argument on the ABC’s QandA program in June 2013.

As I have written on numerous occasions, I strongly disagree with that argument – I do not believe that religious exemptions should extend beyond the appointment of religious office-holders or the conduct of religious ceremonies. I certainly do not believe there should exist a broad right for religious organisations to discriminate against LGBT people in public life.

However, even if some form of religious exemption or exception were to continue in the public sphere, it is incredibly difficult for anyone to make the case that the ‘freedom’ of a religious school to discriminate should override the ability of a young lesbian, gay, bisexual or transgender student to receive their education free from such discrimination – something which is and should be recognised as a fundamental right.

These are vulnerable young people, who, in the vast majority of cases, are in the process of discovering or accepting their sexual orientation and/or gender identity. In nearly all cases, they do not decide which school they attend, including whether it is religious or not (a decision which is normally made for them by their parents, often without specific knowledge of their child’s sexual orientation or gender identity). In many cases, they are also not open about their sexual orientation or gender identity at school, meaning that they are not even in a position to advocate on their own behalf when they encounter such prejudice.

In short, I think it is simply untenable to argue that the freedom of a religious school to discriminate trumps the right of LGBT students not to be discriminated against, especially when the consequence of this discrimination includes an increased risk of mental health issues, including depression, self-harm and most tragically suicide. This not a contest of equal rights, no balancing act is required – the rights of the students should always win.

In the past week, there has been discussion in the United States about trying to ‘balance’ two other supposedly competing rights – the Second Amendment ‘right to bear arms’, with the right to personal safety of others. As part of that discussion, Samuel Wurzelbacher (aka Joe the Plumber) wrote to the parent of one of the young people murdered in the Santa Barbara mass shooting and said:

“I am sorry you lost your child. I myself have a son and daughter and the one thing I never want to go through, is what you are going through now. But: As harsh as this sounds – your dead kids don’t trump my Constitutional rights.”

 

Mr Wurzelbacher’s comments have, quite understandably, attracted heavy criticism in the US, as well as around the world. From an Australian perspective, where more restrictive gun control laws have existed since the Port Arthur massacre in 1996, it is tempting to adopt a certain smugness, and look down upon the level of public debate in the US that such a comment is even possible.

But, in some respects at least, we are prepared to strike a similar bargain here when it comes to the deaths of LGBTI children and young people. We know that they are significantly over-represented in suicide numbers, and we know that the discrimination that LGBTI students experience in school is a major contributing factor to these suicides.

Yet, as a society, we are willing to turn a blind eye to this, and say that religious freedom, and specifically the ‘freedom’ of religious schools to discriminate on the basis of sexual orientation and gender identity, is more important than the lost lives of these young people. In effect, our current anti-discrimination law says that ‘dead LGBT kids don’t trump the rights of religious schools.’

It is time we recognised, and remedied, this situation. It is time we removed anti-discrimination exemptions and exceptions which allow religious schools to discriminate against LGBT people.

Recommendation 2: Amend the National Health & Physical Education Curriculum to be genuinely LGBTI-inclusive

One of the key issues to emerge from both the Growing Up Queer, and Writing Themselves In 3 reports, is the absence, or comparative lack of, a genuinely LGBTI inclusive curriculum, especially with respect to Health & Physical Education.

For example, Growing Up Queer reported that “[p]articipants indicated that sex education at school was heteronormative and focused on reproductive sex only. It was perceived as irrelevant to their needs.” Further, “[p]articipants noted that whilst they received no education about queer sexualities their identities were often ‘sexualised’, with teachers and peers making assumptions about their sexuality and treating them differently on the basis of these assumptions” (pix).

Writing Themselves In 3 confirms this comparative lack of attention: “[s]exuality education was not provided at all to 10% of participants, and when it was, only 15% found it useful. It was clear that quite conservative messages emphasizing heterosexual sex and danger are the norm in most Australian schools with a far smaller number providing messages inclusive of SSAGQ youth” (pxi).

Of course, LGBTI people and content should be visible across multiple parts of the school curriculum (including, for example, history and politics), rather than arbitrarily confined to Health & Physical Education (HPE). Nevertheless, if LGBTI students and issues are excluded from, and made invisible in, the HPE curriculum, it is difficult to imagine them being included elsewhere.

I also agree with the statement in Growing Up Queer that “[y]oung people’s access to comprehensive sexuality education in primary and secondary schooling is a right, and is central to sexual citizenship and the fostering of health and wellbeing in all young people” (pix).

Over the past two years, a new National HPE curriculum has been developed by the Australian Curriculum, Assessment & Reporting Authority (ACARA). Unfortunately, all three versions of the HPE curriculum – the original consultation draft released in December 2012, the revised consultation draft in mid-2013, and the version that was noted but not yet endorsed by COAG Ministers in December 2013 – have comprehensively failed to deliver a genuinely LGBTI-inclusive document.

For example, in none of the three versions of the HPE curriculum have the words lesbian, gay or bisexual even appeared (although, on a slightly more positive note, the most recent version of the HPE curriculum does at least include the words transgender and intersex, and, unlike an earlier version, actually distinguishes between the two).

Despite lesbian, gay and bisexual being the most common forms of identification for people whose sexual orientation is ‘not heterosexual’, these terms have never appeared in any version of this document. This is an appalling exclusion, making young people with diverse sexual orientations even more invisible in the school environment than they already are.

The aspirational ‘student diversity’ statement at the beginning of the document, which attempts to highlight the needs of ‘same-sex attracted, gender diverse or intersex’ students, is also undermined by the inclusion of a sentence noting that it “is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality” (emphasis added) and another that “[a]ll schools communities have a responsibility when implementing the HPE curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students” (emphasis added).

Both of these statements appear to leave the decision whether, and in what way, schools will include LGBTI students and content up to the schools themselves. In the first instance, whether LGBTI students and content are included at all is too important to be left to the ‘flexibility’ of the school itself.

Second, and far more importantly, the reference to ‘lived experiences’ could be argued to leave a loophole for schools to assert that, unless students first identify themselves or disclose their status as LGBTI, they do not exist in the eyes of the school and therefore the school does not have a responsibility to include them or content relevant to their needs.

This approach – apparently leaving it up to students to ‘come out’ before they are entitled to receive vital health information, despite the fact that doing so can, in many Australian jurisdictions, lead to the potential expulsion of that student, let alone other personal consequences for the student with their family or friends – fundamentally undermines the concept of health, and health education, as a universal human right.

There are multiple other problems in the draft National Health Physical Education Curriculum – including a lack of comprehensive sexual health education, and the complete absence of any references to Sexually Transmissible Infections (STIs) and Blood Borne Viruses (BBVs) such as HIV or viral hepatitis.

For more detail on the problems of the national HPE curriculum, and its exclusion of LGBTI students and relevant content, please see my submission to the ‘Students First’ review of the National Curriculum, provided at Attachment A (link here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/ ).

This review, initiated at the request of the Commonwealth Education Minister, the Hon Christopher Pyne MP, is not due to report to him until 31 July, 2013. It will then be considered by Commonwealth and State and Territory Education Ministers at their next COAG meeting, scheduled for 12 December 2014.

That means there is still time to argue for a genuinely LGBTI-inclusive Health & Physical Education curriculum. There remains an opportunity for individuals and organisations, including the Australian Human Rights Commission, to call for a document that does not simply entrench the existing exclusion and invisibility of LGBTI students in classrooms around the country, but actively tries to provide for the needs of all students, including those with diverse sexual orientations, gender identities and those who are intersex.

I urge you, as National Children’s Commissioner, to intervene in this process, and call on the people undertaking the Students First Review, as well as Commonwealth, State and Territory Education Ministers, to amend the national Health & Physical Education curriculum to serve the needs of all students.

Such amendments are vital to help include lesbian, gay, bisexual, transgender and intersex students, and content relevant to their needs. Doing this would help reduce the isolation experienced by LGBTI children and young people, and therefore contribute to lower mental health issues overall, including reduced intentional self-harm and suicidal behaviour.

Recommendation 3: Ensure all schools & school systems adopt pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice

Combatting the homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI children and young people experience in schools, and which causes mental health issues such as self-harm and suicide, is not just about anti-discrimination laws (which in some cases can be reactive, rather than pro-active), or implementing an inclusive curriculum, but it also includes ensuring the entire school environment is ‘safe’ for these students, because often what happens outside the classroom is more important than what happens inside.

This can be achieved through the implementation of comprehensive programs tackling homophobia, biphobia, transphobia and anti-intersex prejudice in as many schools as possible, in as many states and territories as possible, and in as many different types of schools (government, private and religious) as possible.

An example of such a program is the Safe Schools Coalition of Victoria, an initiative that has already achieved 131 member schools, trained 4,555 staff, and reached 20,557 students (data from www.safeschoolscoalitionvictoria.org.au)

From the Safe Schools Coalition Victoria (SSCV) website:

“Safe Schools Coalition Victoria (SSCV) is a coalition of schools and individuals dedicated to creating safer educational environments where every family can belong, every teacher can teach, and every student can learn.

 

“Working in partnership with the Victorian Department of Education and the Department of Health, Safe Schools Coalition Victoria (SSCV), is a ground breaking program that aims to make all schools safe and supportive places for same sex attracted, intersex and gender diverse (SSAIGD) students, teachers and families.

 

“The first initiative of its kind in Australia, SSCV was founded as part of Gay and Lesbian Health Victoria within the Australian Research Centre in Sex, Health & Society at La Trobe University in 2010. We work together with an active network of member schools across all age groups in the government, independent and faith-based sectors.

 

“This coalition model allows us to reach thousands of teachers and school staff to raise awareness and build the skills and confidence needed to actively support gender and sexual diversity in the classrooms, corridors and schoolyards of Victoria…”

 

The SSCV model supports member schools in a variety of ways including staff and student audits, professional learning, resources and consultations.

Unfortunately, a small-scale pilot project, targeting homophobia in NSW government schools from 2011 to 2013 – called ‘Proud Schools’ – was abandoned, seemingly without explanation, at the beginning of 2014 by the State Education Minister, the Hon Adrian Piccoli MP. At this stage, I am not aware of any specific initiative which has replaced it, leaving a significant gap this year where an anti-homophobia program should be.

However, I am aware that the Foundation for Young Australians will be launching a national version of the Victorian model – the Safe Schools Coalition Australia – at a national symposium in Melbourne on Friday 13 June 2014 (details here: https://www.etouches.com/ehome/87262).

It is unclear which State and Territory Governments are supportive of this new national initiative, which is being funded by the Commonwealth Department of Education (announced by the previous Government ahead of last year’s election). It is my sincere hope that all State and Territory Governments support the rollout of the Safe Schools Coalition Australia, and that as many schools as possible join.

This includes government, private and religious schools, as well as geographically diverse (metro, regional and rural/remote) schools, because it should not matter what school an LGBTI child or young person attends, or where they live, they have a fundamental right to an inclusive and supportive education.

I would also expect the Australian Human Rights Commission, and you as National Children’s Commissioner, to be supportive of different schools and school systems adopting pro-active programs against homophobia, biphobia, transphobia and anti-intersex prejudice, as another way to improve the mental health of young LGBTI people around Australia, and thereby help to reduce the over-representation of LGBTI youth in self-harm and suicide statistics.

Recommendation 4: Ban ex-gay or reparative therapy

The practice of ‘ex-gay’ or ‘reparative’ therapy involves organisations, usually religious, offering so-called ‘counselling’ to help transform people who are lesbian, gay or bisexual into being heterosexual, and in some cases to attempt to transform people who are trans* into being cisgender. NB I am unaware of the use of reparative therapy with respect to intersex people, and so have omitted intersex from this discussion.

Ex-gay or reparative therapy attempts to change a person’s sexual orientation or gender identity because of the belief that being lesbian, gay, bisexual or trans* is somehow ‘wrong’, ‘unnatural’ or ‘sinful’. There are three main problems with ex-gay or reparative therapy.

First, there is absolutely nothing wrong, unnatural or sinful with being lesbian, gay, bisexual or trans*. Differences in sexual orientations and gender identities are entirely natural, and this diversity should be accepted and celebrated. Any attempts to prevent people from being LGBT simply demonstrate the homophobia, biphobia and transphobia of the people running ex-gay organisations.

Second, there is absolutely no scientific evidence to support these practices. Sexual orientation and gender identity cannot be ‘changed’ through these interventions. Indeed, the Australian Psychological Society, Royal Australian and New Zealand College of Psychiatrists and Pan American Health Organisation all note that reparative therapy does not work, and recommend against its practice.

Third, and most importantly, not only is ex-gay therapy based on homophobia, biphobia and transphobia, as well as discredited ‘pseudo-science’, but it is also fundamentally dangerous. Reparative therapy takes people who are already vulnerable, tells them that they are inherently wrong, and asks them to change something about themselves that cannot be changed. Inevitably, it leads to significant mental health problems, including self-hatred, depression and tragically, in some cases, suicide.

The people that run ex-gay organisations are guilty of inflicting psychological and sometimes physical damage on others. When it involves children and young people, it is nothing short of child abuse.

Fortunately, the practice of ex-gay or reparative therapy is far less common in Australia than it is in the United States. In recent years, the number of organisations which provide this ‘counselling’ here has also declined. Nevertheless, ex-gay or reparative therapy still exists in Australia, it still damages and breaks people, and it still requires an appropriate policy response.

Given the level of harm that is perpetrated by these people, I believe Australian jurisdictions should introduce legislative bans on ex-gay or reparative therapy. This should include the creation of a criminal offence for running ex-gay therapy, with an aggravated offence for running ex-gay therapy for people under the age of 18. This is necessary to send a signal that these homophobic, biphobic and transphobic practices are no longer tolerated in contemporary society, and especially in the case of minors.

Finally, while at this stage I am not aware of evidence linking registered medical practitioners with these discredited practices, there is evidence overseas that some counsellors, psychologists, psychiatrists or other registered medical practitioners either practice ex-gay therapy themselves, or will refer patients to ex-gay organisations. Any medical practitioners found to be engaging in these practices in Australia should also receive additional sanctions, including potential deregistration and civil penalties.

 

 

Recommendation 5: Fund a national media and social media campaign against homophobia, biphobia, transphobia and anti-intersex prejudice

 

The first three of the recommendations above specifically target schools, not only because research has shown that schools are a major source of the discrimination and prejudice which LGBTI children and young people experience, but also because schools provide an opportunity to exert significant influence in terms of improving social attitudes and directly reducing homophobia, biphobia, transphobia and anti-intersex prejudice.

However, it should be remembered that a) not all discrimination and prejudice originates in schools and b) it is also unfair to expect that schools themselves, acting alone and somehow magically separated from the rest of society, can overcome these serious ills on their own.

It is also important to note that, while 80% of young people in Writing Themselves In 3 identified school as a site for physical or verbal abuse, significant numbers of young LGBTI people also nominated other places in their lives where they are subjected to discrimination and prejudice.

For example, more than 40% cited a social occasion as a place of abuse in 2010 (and like schools, this was an increase from the 1998 and 2004 surveys), and almost 40% indicated they had been abused on the street (although this was down on previous surveys). Meanwhile, approximately a quarter indicated they had been verbally or physically abused at home on the basis of their sexual orientation or gender identity.

It is also not hard to find numerous examples, in the media and culture more generally, of the everyday homophobia, biphobia, transphobia and anti-intersex prejudice, which all LGBTI people are subjected to, but which have a particular impact on LGBTI children and young people.

For example, just in the last month, we have witnessed an NRL player describe another player as a “f—ing gay c—t”, which was subsequently defended by a prominent national columnist, in an article titled “NRL bosses are totally gay”, as somehow not being homophobic. We have had a TV host rant about NFL footballer Michael Sam simply kissing his male partner live on air (describing it as “annoyingly gratuitous”), a Senator-elect tweet that being gay as a ‘lifestyle’ and link it with promiscuity, as well as a State MP indicate his belief that same-sex parenting would hurt that couple’s children.

That is just a small sample of the ‘slings and arrows’ of homophobia, biphobia, transphobia and anti-intersex prejudice which LGBTI Australians are exposed to all too frequently. For many of us, while such comments are offensive, and sometimes hurt, they do not necessarily lead us to self-harm, or cause significant emotional and mental anguish.

Nevertheless, for those who are already vulnerable, including some adults, but especially for young people who may still be coming to terms with being LGBTI, hearing such messages can directly cause harm, and contribute to or worsen existing mental health concerns. This harm is exacerbated if these negative statements are all that the young person hears with respect to being lesbian, gay, bisexual, transgender or intersex, and are not balanced or countered with equivalent positive messages.

Which is why I believe there would be utility in the Commonwealth Government directly funding a large national media, including social media, campaign against homophobia, biphobia, transphobia and anti-intersex prejudice. But rather than simply tackling the ‘negative’, I think such a campaign should also express a positive message about diversity of sexual orientations, gender identities and intersex status – sending the message that being LGBTI is natural, and that heterosexual, cisgender and LGBTI young people all deserve equality, and equal dignity in all aspects of life.

While there have been some great initiatives at state government level in this regard, as well as some excellent work by relevant not-for-profits/NGOs and even individuals (with campaigns like Victoria’s No to Homophobia, and the Beyond ‘That’s So Gay’ work of Daniel Witthaus), the involvement of the Commonwealth could bring benefit, both in terms of scale of resources, and by reaching LGBTI children and young people across Australia.

Of course, any such campaign would need to be co-ordinated with LGBTI organisations, as well as organisations that work in the mental health sector. But most important would be the involvement of young LGBTI people themselves.

The media and social media campaign would need to be designed so as to be relevant to young people, not just those that are LGBTI, but also to their non-LGBTI peers, in order to increase their own understanding and lessen any bullying or harassment of their friends and classmates. Young LGBTI people (and certainly people much younger than myself) would be best placed to advise on how to make such a campaign work.

I would also point out that I have made this particular recommendation in response to term of reference number eight in the Call for Submissions (namely “[t]he feasibility and effectiveness of conducting public education campaigns aimed at reducing the number of children who engage in intentional self-harm and suicidal behaviour”).

I acknowledge there are particular sensitivities in designing campaigns which specifically target those already at risk of self-harm and suicide, with the possibility that the campaign itself triggers particular negative responses. I am not an expert in this area and so am not in position to suggest whether, and if so how, an appropriate campaign could be designed that focused directly on LGBTI children and young people and that explicitly discussed self-harm or suicide – I am sure other individuals and organisations who are experts in this area will be doing so much more effectively in their own submissions.

But I do believe that an overarching campaign, which addresses the root cause of much of those problems – the homophobia, biphobia, transphobia and anti-intersex prejudice which young LGBTI people experience everyday – would provide its own additional benefits in terms of long-term mental health improvement.

Those are the five key recommendations that I would like the Australian Human Rights Commission, and you as the National Children’s Commissioner, to focus on in terms of examining how to reduce the disproportionate effects of self-harm and suicide on LGBTI children and young people.

Obviously, that is not an exhaustive list. There are other areas which are worthy of examination, including considering whether LGBTI people should be protected against vilification in the same way that Commonwealth law currently protects against racial vilification (through section 18C of the Racial Discrimination Act 1975).

I believe there would also be benefit in considering how best to fund, on a secure and ongoing basis, LGBTI community organisations to deliver services to young LGBTI people at risk, as well as how to ensure that mainstream mental health and general health services are inclusive of, and respond to the needs of, LGBTI children and young people. But once again, I would expect that other individuals and organisations will be much better placed to make submissions with respect to those topics.

In conclusion, I would like to express my thanks to the Australian Human Rights Commission, and to you as National Children’s Commissioner, for choosing to initiate an inquiry into intentional self-harm and suicidal behaviour in children and young people.

The rate of youth self-harm and suicide amongst all of Australia’s youth, including but not limited to young lesbian, gay, bisexual, transgender and intersex youth, is truly a national tragedy.

I appreciate the opportunity to make a submission to this inquiry, and look forward to seeing the Final Report in the Commissioner’s 2014 Statutory Report to Commonwealth Parliament.

Alastair Lawrie

Sunday 1 June 2014

NB Given the issues raised in this submission, I include below the same contact details for help included on the Commission’s call for submissions:

National Help and Counselling Services
Lifeline – 24 hour crisis support and suicide prevention

Kids Helpline – counselling service for children and young people aged 5 to 25 years

Headspace – counselling and referral service for young people aged 12 to 25 years

ReachOut.com – online youth mental health service

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

  • It is unclear whether the Bill, as drafted, will accomplish this aim
  • There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
  • If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “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.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

  1. The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
  2. The appointment of any other person [s56(c)];
  3. Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie