Over the past week, the Australian media has been busy re-living the Sydney 2000 Olympics during its 20thanniversary. While this trip down nostalgia lane has been a welcome distraction from the living nightmare that is 2020, it has also been a reminder of the lost opportunity to build on that brief moment of unity.
To borrow from a certain fracking drag queen reality TV host, in the two decades since the Olympics Sydney[i] has been ‘resting on pretty’.
In terms of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the situation could just as easily be described as ‘resting on party’.
Known around the world for the Gay & Lesbian Mardi Gras Parade, Party and Festival, Sydney’s reputation as an LGBT-inclusive city is not reflected in the reality of its laws, politics and media.
Indeed, in terms of legal rights, Sydney and the state of NSW now have the worst LGBTI laws of any jurisdiction in Australia. If that sounds like a hyperbolic claim, consider this:
For lesbians and gay men, the NSW Anti-Discrimination Act 1977 (ADA) offers the weakest protections against discrimination of any state and territory anti-discrimination law.
That is because the exceptions in section 56(d) – allowing religious organisations to lawfully discriminate against us – are the equal-broadest in the country (and a long way behind the best practice laws in Tasmania), while NSW is the only place to allow all private schools, religious and non-religious alike, to discriminate against students, teachers and other staff on the basis of their sexual orientation and gender identity.
For bisexuals, the situation is even worse. The ADA is the only anti-discrimination law in Australia that does not actually protect bisexual people against discrimination. At all.
For trans and gender diverse people, NSW’s laws – covering multiple areas of life – are also the worst in the country.
The ADA only protects transgender people with binary gender identities (‘male-to-female’ or ‘female-to-male’), while excluding people who identify as non-binary (although, sadly, it is not the only jurisdiction to do so: Victoria, Queensland, Western Australia, South Australia and the Northern Territory also offer limited protection).
As with lesbians and gay men, however, the ADA allows all private schools, even those that are non-religious, to discriminate against transgender students, teachers and other staff.
NSW also has the equal-worst framework for trans and gender diverse people to access birth certificates reflecting their gender identity: alongside Queensland, it still requires surgery in order to obtain new identity documents. Unlike Queensland, however, there has been zero indication the NSW Government is interested in removing this unjust and unnecessary hurdle.[ii]
Intersex people might be the only LGBTI group in respect of which NSW does not have the outright worst laws in Australia. Sadly, that’s more due of the lack of progress in the majority of states and territories, than it is because of any particular progress on intersex law reform here.
The ADA does not provide anti-discrimination protection on the basis of ‘intersex status’[iii] or ‘sex characteristics’[iv] – although neither does Victoria, Queensland, Western Australia or the Northern Territory.[v]
Meanwhile, no Australian jurisdiction has prohibited the ongoing human rights abuses that are unnecessary surgeries and other involuntary medical treatments on children born with intersex variations of sex characteristics.
In encouraging news, the Tasmanian Law Reform Institute recommended criminalisation of non-consensual, deferrable medical interventions on children in June 2020, while the Australian Human Rights Commission is currently also engaged in a project on this issue. However, as far as I am aware, there is no equivalent work being undertaken by the NSW Government.
Finally, Queensland recently introduced prohibitions on sexual orientation and gender identity conversion practices (albeit only within healthcare settings), while the ACT passed more comprehensive reforms which targeted conversion practices more broadly, including in religious environments.
Bans on gay and trans conversion practices are also seriously being considered in South Australia, Tasmania and Victoria. However, once again, there have been no signs whatsoever that the NSW Government, or Parliament, are interested in ending this psychological torture.
Overall, then, it is clear that on contemporary LGBTI law reform issues – from expanding anti-discrimination protections, enacting birth certificate reform, ending non-consensual medical interventions on intersex children, to eradicating gay and trans conversion practices – NSW is a laggard.
Sydney might be a beautiful city, but on LGBTI rights NSW is undeniably backward.
Some people might argue that the people of Sydney are more accepting of the LGBTI community than their politicians. And that may be partly true, especially in patches. However, the outcome of the 2017 same-sex marriage law postal survey contradicts that view.
NSW was the only state or territory in Australia where the Yes vote for marriage equality was lower than 60%: just 57.8% of people in NSW supported removing anti-LGBTI discrimination from the Marriage Act 1961(Cth). The next lowest state was Queensland, but its result was nearly 3 points higher (60.7%).
More damningly, only 17 electorates around Australia did not record a majority Yes vote. 12 of those were found in metropolitan Sydney,[vi] including the seven electorates with the highest No vote (reaching up to 73.9% No in Blaxland).
Based on this (admittedly context-specific) example, Sydney has the highest rates of homophobia, biphobia and transphobia in the entire country.
The history of marriage equality in Australia is just as illustrative of the corrosive impact politicians from Sydney have had on the rights of all LGBTI Australians.
The Liberal Prime Ministers who first banned marriage equality (John Howard), first proposed to hold an unnecessary, wasteful, divisive and harmful public vote on our rights (Tony Abbott),[vii] actually held that vote (Malcolm Turnbull) and paid for it (Scott Morrison, as Treasurer), were all from Sydney.
Morrison in particular is on track to be the worst Prime Minister on LGBTI issues in Australia’s history, from his ‘gender whisperer’ comments, to his broken promise to protect LGBT students against discrimination, and the proposed Commonwealth Religious Discrimination Bill which overrides, and undermines, existing LGBT anti-discrimination protections.
It is likely no coincidence Sydney is the home of News Corp Australia, where it publishes Bernard Lane’s campaign against trans-affirming healthcare (in The Australian) and Miranda Devine’s columns targeting LGBTI-inclusive education (in the Daily Telegraph).
Perhaps the most depressing realisation of all is that, in September 2020, there is more chance things will get worse rather than better.
As we have already seen, there are no public signs the NSW Government is interested in reforming trans and gender diverse access to birth certificates, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices.
Nor is there any current indication they will act to modernise the nation’s worst LGBTI anti-discrimination law, to include bisexuals, non-binary people and intersex people, and repeal the exceptions which allow religious organisations, and private schools, to lawfully discriminate against our community.
Even at a procedural level, the NSW Government does not have a formal LGBTI consultative mechanism, unlike the Victorian LGBTIQ Taskforce, Queensland LGBTI Roundtable, ACT LGBTIQ+ Ministerial Advisory Council, and a range of long-standing Tasmanian LGBTIQ+ Government working groups.
On the other hand, while there are no legislative proposals to improve the rights of LGBTI people currently before NSW Parliament, there are several Bills which, if passed, would set our legal rights back even further.
That includes the Mark Latham/One Nation Anti-Discrimination (Religious Freedoms and Equality) Bill 2020, that would undermine our existing, limited protections against discrimination, which the Government and Opposition nevertheless saw fit to refer to a Joint Select Committee for consideration.
And then there’s the truly awful Education Legislation Amendment (Parental Rights) Bill 2020 – also from Latham/One Nation – which not only seeks to erase trans and gender diverse students and teachers entirely from all NSW schools, but also attempts to introduce a UK ‘section 28’-style provision making life difficult for all LGBTI kids, while introducing an erroneous and stigmatising legislative definition of intersex, too.
That Bill has also been referred to a Parliamentary Committee for inquiry – with the Committee chaired by Mark Latham himself.
We are now 18 months into the Berejiklian Liberal/National Government’s term. It is time for them to step up – not just to defend LGBTI people in NSW against Mark Latham’s, and One Nation’s, attacks on our community, by rejecting outright his deeply flawed ‘religious freedom’ and anti-trans kids legislative proposals.
But also to make long-overdue progress on other important issues, including birth certificate changes, protecting intersex kids, ending conversion practices and engaging in broader anti-discrimination reforms.
As of this week, they have 30 months left until the next State election. How they use their time between now and 25 March, 2023, will determine whether NSW will continue to have the worst LGBTI laws in Australia, or at least something closer to the national average.
There is another significant event in Sydney from mid-February to early March in 2023 which is highly relevant to this conversation: World Pride will be hosted by the Sydney Gay & Lesbian Mardi Gras.
Assuming it is not cancelled because of coronavirus, large numbers of LGBTI eyes from around the globe will be focused squarely on us. The world already knows Sydney puts on a good party, Olympics, Mardi Gras or otherwise. But during World Pride they will also be looking at the State of our rights.
If the NSW Government doesn’t undertake essential, and long overdue, reforms in the next two-and-a-half years, we will be greeting our international guests by saying ‘Welcome to Sydney: Australia’s capital of homophobia, biphobia and transphobia’.
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Take Action
Of course, it doesn’t have to be this way. There are at least three things you can do to avoid that potential embarrassment (a good outcome) and make the lives of LGBTI people in NSW better on a day-to-day basis (a great one):
- Get involved
For too long, the burden of fighting for our rights has been borne by too few. There are a range of different organisations you can join or support to help make a difference, including:
- The NSW Gay & Lesbian Rights Lobby
- Sydney Bi+ Network
- The Gender Centre, and
- Intersex Human Rights Australia
And there are plenty of others too (including Union Pride, as well as LGBTI advocacy groups within political parties).
2. Defend our community against attacks
As the above article (hopefully) makes clear, LGBTI rights in NSW are currently under attack by Mark Latham.
You can help the campaign against One Nation’s Education Legislation Amendment (Parental Rights) Bill, aka the anti-trans kids Bill, in the following ways:
- Sign the Gender Centre, just.equal and AllOut petition
- Sign Sam Guerra’s individual Change.Org petition (which is already over 80,000 signatures), and
- Use Equality Australia’s platform to write to the Premier, Deputy Premier, Education Minister, Opposition Leader and Education Minister here.
You can also find out about, and take action against, the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 on the Equality Australia website here.
3. Support campaigns for positive change
A lot of our time, at both NSW and Commonwealth level, is currently being spent fighting against proposals that would take our rights backward. That is necessary and important work – but we won’t achieve progress without campaigns which seek to make our existing laws better.
Whether it is anti-discrimination law reform, improving birth certificate access, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices – or a wide range of other important LGBTI issues – find a campaign and help drive it forward.
Positive change doesn’t happen in a vacuum, it happens when we use our voice.
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Footnotes:
[i] I should clarify here that this post is about the small ‘c’ city of Sydney (meaning the large metropolitan area of 5 million people), and not the capital ‘C’ City of Sydney Council, which is largely progressive.
[ii] Disappointingly, the Queensland Government has failed to make progress on birth certificate reform since its 2018 Discussion Paper, and, as far as I am aware, have not promised to take action on this issue even if they are re-elected on 31 October.
[iii] Which is a protected attribute in both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).
[iv] Which is the preferred protected attribute for intersex advocates, as per the March 2017 Darlington Statement, and was recently included in the Discrimination Act 1991 (ACT), while the Tasmanian Anti-Discrimination Act 1998 covers ‘intersex variations of sex characteristics’.
[v] ‘Intersex status’ was included in the 2018 amendments to the Crimes Act 1900 (NSW), which prohibited ‘public threats of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’, although to date this legislation has still not been used.
[vi] Of the other five, three were in regional Queensland, and two were in suburban Melbourne. Zero electorates in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory voted No.
[vii] Tony Abbott’s decision, as Opposition Leader, to deny Coalition MPs and Senators a conscience vote also cruelled any chance of Stephen Jones’ 2012 marriage equality legislation being passed.
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