Submission to the WA Law Reform Commission Review of the Equal Opportunity Act 1984

Law Reform Commission

GPO Box F317

Perth WA 6841

Via email: equalopportunityreview@justice.wa.gov.au

Friday 5 November 2021

To the Commission

Submission to Review of the Equal Opportunity Act 1984 (WA)

Thank you for the opportunity to provide this individual submission in response to the Commission’s Discussion Paper as part of this important and long-overdue review.

I do so as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as a leading expert on LGBTI anti-discrimination law in Australia, as demonstrated by my personal website www.alastairlawrie.net

Based on this experience, I submit that the Equal Opportunity Act 1984 (WA) is one of the worst LGBTI anti-discrimination laws in Australia, failing to offer necessary protections to multiple sections of the LGBTI community, across multiple areas.[i]

In this submission, I will provide major comments in relation to three primary areas for reform:[ii]

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

I will then provide some additional comments regarding a number of other issues raised in the Discussion Paper.

Protected Attributes

Gender identity

I welcome the Discussion Paper’s focus on the issue of ‘gender history discrimination and gender identity’ on pages 107 to 109 (although I also note the problematic aspects of this discussion in relation to sex characteristics, which I will address further below).

Western Australia’s anti-discrimination protections for trans and gender diverse people are the narrowest and therefore most limited in Australia.

It is the only jurisdiction to limit anti-discrimination coverage to people who have undergone surgical and/or hormonal gender affirmation treatment, and have also had that gender affirmation recognised by the State (in this case, under the Gender Reassignment Act 2000 (WA)).[iii]

This is because of the combination of three provisions: the definition of gender reassigned person in section 4:

‘gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act’;

the definition of ‘gender history’ in section 35AA:

(1) ‘For the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.

(2) In subsection (1)-

opposite sex means a sex of which the person was not a member at birth’;

and the test for discrimination on the protected attribute of ‘gender history’ in section 35AB (and subsequent sections):

(1) ‘For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.’

In my view, there is no justification to limit protections for gender identity-related discrimination to the comparatively small group of people who have had their gender identity recognised by the State, while leaving the much larger group of other trans and gender diverse people without any protections whatsoever.

It is time for Western Australia to remove this limitation, and follow the lead of the Commonwealth Government, and all other states and territories, by removing any link between formal gender recognition and anti-discrimination protection.

A related problem is caused by the definition of ‘gender history’ in section 35AA, which limits protections to people who ‘identify as a member of the opposite sex’ – meaning a person who was assigned female at birth but whose gender identity is male, and vice versa.

Irrespective of the gender recognition restriction (above), this definition itself excludes a wide range of nonbinary and gender diverse people whose gender identities do not neatly fit within this supposed ‘gender binary’.

Unfortunately, in this respect, Western Australia has some company – anti-discrimination coverage in NSW, Queensland and the Northern Territory also excludes nonbinary and gender diverse people.

However, that means all other jurisdictions, including the Commonwealth, Victoria, South Australia, Tasmania and the ACT, have amended their laws to protect nonbinary and gender diverse people.

Once again, I can see no legitimate justification to allow discrimination against nonbinary and gender diverse people on the basis of their gender identity.

It is time for Western Australia to follow the best practice approach of other jurisdictions. The most recent, and not-coincidentally most inclusive, is the definition of gender identity which commenced in the Victoria Equal Opportunity Act 2010 on 26 October 2021:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’ (section 4).

Finally, I see no justification for why anti-discrimination protections for trans and gender diverse people should apply in fewer areas of public life compared to other protected attributes. The Act should be amended so that the prohibition on discrimination on the basis of gender identity applies in the same areas as race, sex and sexual orientation.

Recommendation 1:

Trans and gender diverse people in Western Australia should be protected against discrimination irrespective of whether their gender identity is formally recognised by the State, and irrespective of whether their gender identity is binary, nonbinary or gender diverse.

This should be achieved by replacing the protected attribute of ‘gender history’ with a protected attribute of ‘gender identity’, and adopting the best practice definition from the Victorian Equal Opportunity Act 2010:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

Prohibitions against discrimination on the basis of gender identity should also apply in the same areas of public life as existing core protected attributes, such as race, sex and sexual orientation.

Sex characteristics

As flagged earlier, perhaps the most disappointing aspect of the entire Discussion Paper is the conflation of the two distinct protected attributes of gender identity and sex characteristics.

In the section ‘Gender history discrimination / gender identity / intersex status’ on pages 107 to 109, it is unclear whether the Discussion Paper’s author(s) understand the differences between trans and gender diverse people, and people with innate variations of sex characteristics (intersex people).

Indeed, the questions posed on page 109 – ‘Should the protections in the Act be expanded beyond the currently defined gender reassigned persons (for example, persons identifying as another sex)? Should there be exceptions? What other legislation is relevant to this provision?’ – do not even ask directly about what attribute should be introduced to protect people with innate variations of sex characteristics against discrimination.

Obviously, I believe that intersex people in Western Australia do require protection against discrimination under the Equal Opportunity Act.

In my view, this should be achieved by introducing a new protected attribute of ‘sex characteristics’, as called for by intersex people and organisations in the March 2017 Darlington Statement, and as reflected in the Yogyakarta Principles plus 10

The terminology ‘sex characteristics’ is best practice, and has been recently introduced in both the ACT and Victoria (with ‘intersex variations of sex characteristics’ covered in Tasmania). Sex characteristics is also preferred compared to older attributes of ‘intersex status’, as protected in the Sex Discrimination Act 1984 (Cth), and in South Australia.

I endorse the definition of sex characteristics proposed by Intersex Human Rights Australia in their submission in response to the Discussion Paper:[iv]

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Recommendation 2:

People with innate variations of sex characteristics (intersex people) in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by introducing a protected attribute of ‘sex characteristics’, based on the wording used in the submission by Intersex Human Rights Australia:

‘sex characteristics means a person’s physical features relating to sex, and includes:

(a) the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Sexual orientation

One issue not addressed at all in the Discussion Paper is the need to update the definition of the protected attribute of sexual orientation.

Currently, section 4 of the Act defines sexual orientation as:

‘in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.’

While this does include people who identify as lesbian, gay and bisexual, it does not expressly include other sexual orientations such as pansexuality. It has also fallen behind the best practice definitions of sexual orientation adopted elsewhere in Australia.

For example, recent amendments to the Victorian Equal Opportunity Act 2010, which commenced on 26 October 2021, define sexual orientation as:

‘means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

The WA Equal Opportunity Act 1984 should be amended in a similar manner to ensure sexual orientations other than lesbian, gay and bisexual – including people identifying as pansexual – are explicitly protected.

Recommendation 3:

People with sexual orientations other than lesbian, gay and bisexual – such as pansexual people – in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by modernising the definition of ‘sexual orientation’ in section 4 of the Act, with reference to the best practice definition in the Victorian Equal Opportunity Act 2010:

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

*****

Religious Exceptions

The religious exceptions contained in the Equal Opportunity Act 1984 (WA) are excessive, and do not reflect contemporary community standards. Nor do they respect the right of LGBT people in Western Australia to go about their daily lives, free from discrimination. In employment. In education. In health and community services. In all areas of public life.

For example, section 72 currently provides:

‘Nothing in this Act affects-

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

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) 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.’

While there may be some possible justification for sub-sections (a) through (c) (although I would argue (c) needs to be more narrowly drafted), in order to respect the ability of religious bodies to employ, train and appoint people to engage in religious ceremonies, there can be no possible justification for granting religious organisations an effective ‘blank cheque’ to discriminate against people in all areas of public life, and in relation to all protected attributes, including sexual orientation and gender identity.

In this respect, the Western Australian Equal Opportunity Act has fallen well behind best practice, and in particular the approach to religious exceptions adopted by Tasmania 23 years ago.

Under the Tasmania Anti-Discrimination Act 1998, the circumstances in which religious organisations may discriminate are more narrowly constrained. More importantly, such discrimination is only allowed on the ground of religious belief or activity or religious activity, and therefore not on other grounds such as sexual orientation, gender identity or intersex variations of sex characteristics.

Not only is this, in my view, a preferrable accommodation of the legitimate needs of religious organisations to form communities of faith, but it has also operated successfully for more than two decades, thereby setting an example I would strongly encourage Western Australia to follow.

The arguments against allowing religious organisations to discriminate against LGBT people generally are even stronger in relation to LGBT students, teachers and other staff in the context of religious schools.

Under section 73 of the Equal Opportunity Act, religious schools are permitted to discriminate against:

  • LGBT teachers (sub-section (a))
  • LGBT contract workers (sub-section (b)), and
  • LGBT students and/or families (sub-section (c)).

This is unacceptable. LGBT teachers should be free to impart their knowledge, and utilise their skills, in any environment without having to fear that their sexual orientation, gender identity or relationship status will be used to discipline them in, or even dismiss them from, their role. 

LGBT students should also be free to learn without fearing that their place of learning will discriminate against them. The parents of LGBT students, as well as rainbow families with children, should be able to feel confident in sending their children to any school in the knowledge they will not be mistreated because of who they, or their families, are.

Currently, Western Australia’s anti-discrimination laws fall well short of this ideal.

Instead, both in relation to religious exceptions broadly, and in relation to religious schools specifically, I submit that Western Australia should adopt similar provisions to those already successfully operating in the Tasmanian Anti-Discrimination Act 1998, namely:

51. Employment based on religion

(1) A person may discriminate against another person on the grounds of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, 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 to be conducted in accordance with the tenets, belief, 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.

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.

52. Participation in religious observance

A person may discriminate against another person on the ground of religious belief or affiliation 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.

There is obviously a lot of detail in these sections, but one particular point I would like to draw to the Commission’s attention is that it does allow religious schools to discriminate on the basis of religious belief or affiliation or religious activity against students, but only at admission or enrolment, and not post-enrolment.

Preferencing students of a particular religion is a concession to the ability of denominations to form communities of faith in which to educate children. However, the limitation – only allowing discrimination at enrolment and not beyond – is just as important, for two reasons.

First, it allows the child to determine their own religious beliefs as they age. Schools should not be able to discriminate against students who, as they grow older, question the faith of the school, or particular elements of that faith, adopt a different faith, or decide to have no faith at all.

Second, prohibiting discrimination on the basis of religious belief beyond enrolment is a necessary safeguard against religious schools imposing discrimination on the basis of other attributes, including sexual orientation or gender identity, via alternative or indirect routes.

For example, were religious schools permitted to discriminate on the basis of religious belief throughout a student’s education, they could potentially ask students to sign codes of conduct which state that ‘homosexuality is intrinsically disordered’ or that ‘sex is binary and determined at birth’ (thereby erasing trans and gender diverse children).

The school in these circumstances could claim students who refused to sign such a document, and were subsequently punished, were not being discriminated against because of their sexual orientation or gender identity, but because of the specific tenets of the faith of the school. This discrimination would nevertheless inflict the same harmful outcome on LGBT students and should be prohibited.

Indeed, each of the four Australian jurisdictions which have already legislated to protect LGBT students in religious schools against discrimination (Queensland, the Northern Territory and the ACT, in addition to Tasmania) only allow religious schools to discriminate against students on the basis of religious belief, and only at the point of enrolment.

Finally, in relation to religious exceptions, I would like to highlight three alternative approaches to this issue which I would caution against being adopted in the Western Australian Equal Opportunity Act.

First, the Queensland Anti-Discrimination Act 1991, and specifically section 25, establishes what I describe as a ‘Don’t Ask, Don’t Tell’ scheme, whereby religious schools are not allowed to ask teachers about their sexual orientation or gender identity.

However, where LGBT teachers and other staff members are ‘out’, disclose anything about their orientation, identity or relationship status – or ‘openly act in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs’ (sub-section 25(3)(a)) – they can be fired.

Forcing LGBT teachers into the closet in order to teach is inhumane. Compelling them to continually watch over the shoulders, and be ever-vigilant in policing their own sexual orientation and/or gender identity, is intolerable.

Don’t Ask, Don’t Tell was a failed policy in the US military. It is an awful approach under the Queensland Anti-Discrimination Act. And it must not be replicated in Western Australia.

Second, the South Australian Equal Opportunity Act 1984, and specifically section 4, adopts what I consider to be an unsatisfactory approach in allowing discrimination by religious schools against LGBTI teachers, but only where the person discriminated against was provided with a publicly-available policy spelling out this discrimination.

Specifically, subsection 34(3) states:

This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.

In my view, the publication of such a policy does not ameliorate the discrimination involved. It does not make discrimination against LGBTI teachers any more acceptable, only more public.

Indeed, attempting to justify such a policy on the basis of ‘transparency’ is akin to suggesting the White Australia Policy was something less than racist because it was written down. Anti-LGBTI prejudice is just as unacceptable when it is published.

Third, the Victorian Government recently proposed amendments to the religious exceptions in their Equal Opportunity Act 2010 (via the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, currently awaiting debate).

While passage of this legislation would result in significant improvements to their anti-discrimination framework, including removing the ability of religious schools to discriminate against LGBT students, teachers and other staff, it also introduces a dichotomy into the Act, establishing different protections in some circumstances based on whether the services being delivered are government funded or not (proposed new section 82B).

Where those services are not government funded – even if they are in the public sphere (such as community services) – religious organisations would retain the ability to discriminate against people accessing those services on the basis of ‘religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity’ (existing section 82(2)).

In my view, the discrimination itself remains unacceptable irrespective of the source of the funds used in its execution. This is both a practical consideration – that the individuals who are discriminated against in this way would suffer adverse and unjustified impacts.

And a normative one. A primary function of anti-discrimination laws is to signal to society what types of discrimination are acceptable, and what types are not. Retaining provisions which explicitly state there will be certain situations in which it is acceptable to discriminate on the basis of sexual orientation or gender identity reinforces negative anti-LGBT attitudes. 

In this way, while a large step forward, the proposed Victorian amendments still fall short of the best practice Tasmanian approach.

Recommendation 4:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against discrimination by religious organisations, both in employment and in relation to access to services.

This should include protection for LGBT students and their families, and for teachers and other staff members, in relation to religious schools and other religious educational institutions.

Where discrimination by religious schools is allowed in relation to students, this must be limited to the ground of religious belief or activity, and must not be legally permitted beyond enrolment.

This should be achieved by using the best practice provisions of the Tasmanian Anti-Discrimination Act 1998 – and specifically sections 51, 51A and 52 – as a starting point.

*****

Anti-Vilification Protections

I welcome the Discussion Paper’s focus on the issue of anti-vilification protections, from page 150 onwards, including acknowledgement that in Western Australia, only racial harassment and some aspects of racial vilification are prohibited, and not general vilification on the basis of other protected attributes.

In my view, this is a significant weakness of the Equal Opportunity Act 1984 (WA), especially given the ongoing high levels of anti-LGBTI harassment and hate speech in the community.

It also means that, in yet another core area of anti-discrimination legislation, Western Australia has fallen behind the standard set by other jurisdictions.[v]

Specifically, Tasmania and the ACT both prohibit vilification against all parts of the lesbian, gay, bisexual, transgender and intersex community.

Meanwhile, Queensland prohibits vilification against lesbian, gay, bisexual and some transgender people (those with binary gender identities), but does not prohibit vilification against nonbinary people or people with innate variations of sex characteristics.

Finally, NSW provides different parts of the LGBTI community with different levels of protection – all LGBTI people are protected by the Crimes Act 1900 (NSW) offence of publicly threatening or inciting violence (section 93Z), but only lesbian, gay and some transgender people (those with binary gender identities) are able to access civil anti-vilification protections under the Anti-Discrimination Act 1977 (NSW).

Importantly, it should be noted that the Victorian Government recently committed to extending its own vilification protections to cover sexual orientation, gender identity and sex characteristics, meaning a clear majority of Australian jurisdictions have already, or will soon, cover the LGBTI community against vilification either in part or in full.

In my view, LGBTI people in Western Australia should also be protected against vilification by the introduction of explicit vilification protections in the Equal Opportunity Act 1984. These should cover the protected attributes of:

  • sexual orientation
  • gender identity, and
  • sex characteristics

as defined earlier in this submission.

Recommendation 5:

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Western Australia should be protected against vilification.

This should be achieved by the inclusion of prohibitions on vilification within the Equal Opportunity Act 1984 which cover (at least):

  • sexual orientation
  • gender identity, and
  • sex characteristics.

In terms of what form these provisions should take, I believe the Tasmanian Anti-Discrimination Act 1998 demonstrates best practice in this area.

Specifically, Tasmania adopts a bifurcated approach. Section 17(1) provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute… 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.’

While section 19 states that:

‘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 affiliation or religious activity of the person or any member of the group; or

(e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.’

This approach – a broad-based prohibition on conduct which offends, humiliates, intimidates, insults or ridicules, supplemented by a narrower prohibition on the even more serious acts of inciting hatred, serious contempt or severe ridicule – ensures that all types of behaviour which should be banned are in fact covered.

Recommendation 6:

LGBTI people in Western Australia should enjoy both broad-based protections against conduct which offends, humiliates, intimidates, insults or ridicules, as well as narrower protections against conduct which incites hatred, serious contempt or severe ridicule.

This should be achieved by adopting the bifurcated model of the Tasmanian Anti-Discrimination Act 1998, and specifically sections 17(1) and 19 of that legislation.

I note that the Discussion Paper asks the following questions on page 153:

Should or how may vilification provisions address concerns about the impact on other rights and exemptions under the Act?

and

Should or how may vilification provisions address concerns around the loss of freedom of speech?

In response, I would like to highlight that we are talking about harmful speech, objectively-determined (the test in section 17(1) of the Tasmanian Anti-Discrimination Act provides that it must be ‘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’).

It is not a question of how the victim of such harmful speech feels, but about whether such harmful speech would be seen by others as causing offence, humiliation, intimidation, insult or ridicule.

Having said that, Tasmania, like all other jurisdictions which have adopted prohibitions on vilification, does provide an exception for speech which is for a public purpose. Section 55 of the Anti-Discrimination Act 1998 (Tas) states:

‘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.’

These carve-outs are relatively broad, especially sub-section 55(c)(ii), and would seem to provide adequate and appropriate balance in the interests of free speech where that speech is in good faith and for a public purpose.

I should note that some other jurisdictions go slightly further. For example, civil vilification prohibitions in NSW include the following carve-out (taken from section 49ZT(2)(c) of the Anti-Discrimination Act 1977, which deals with homosexual vilification):

‘a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.’

I do not support the express inclusion of ‘religious instruction’ in this context. There does not appear to be a legitimate reason why religious instruction should be elevated above other ‘public purposes’ in this way (noting that it is already exempt under the Tasmanian provisions where it is ‘done in good faith for any purpose in the public interest’). 

Indeed, there was an attempt in 2016 and 2017 to amend the Tasmanian Anti-Discrimination Act in a similar way, which was thankfully defeated by their Legislative Council.

In my view, section 55 of the Tasmanian Act remains the best attempt to ensure that harmful speech is prohibited while legitimate speech is allowed.

Recommendation 7:

In order to ensure legitimate speech continues to be allowed, there is a need to introduce a provision exempting conduct which is done in good faith and for a public interest purpose.

This should be achieved by adopting the best practice exemption found in section 55 of the Tasmanian Anti-Discrimination Act 1998:

‘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.’

*****

Other Issues

Removing Barriers to Identity Documentation for Trans and Gender Diverse People

The current restriction of anti-discrimination protections in the Act to ‘gender reassigned persons on gender history grounds’ inevitably raises the issue of lack of access to identity documentation, including birth certificates, for trans and gender diverse people.

Even if, as recommended earlier, a new protected attribute of gender identity replaces gender history, there is still an urgent need to remove barriers to this documentation.

Indeed, the terms of the Gender Reassignment Act 2000 (WA) make Western Australia the third worst jurisdiction in Australia for trans and gender diverse people to access birth certificates reflecting their gender identity.[vi]

The only reason it is not equal worst, with NSW and Queensland, is because the High Court decision in AB v Western Australia; AH v Western Australia [2011] HCA 42 removed the requirement for genital surgery – although there remains a requirement for physical treatment of some kind.

In this way, the approach to this issue in Western Australia falls a long way behind the best practice of other jurisdictions, a fact acknowledged by the WA Law Reform Commission previously in its ‘Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics’ (Project 108). The final report of that review recommended both that:

‘The Gender Reassignment Act 2000 (WA) and Gender Reassignment Regulations 2001 (WA) be repealed’ (Recommendation 10), and

‘The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an administrative process to change the gender classification on a Gender Identity Certificate’ (Recommendation 11).

From my perspective, legislation which provides trans and gender diverse people access to identity documents, including birth certificates, that reflect their gender identity, should meet at least the following three principles:[vii]

  1. Access to amended identity documentation must not depend on surgery or other medical treatments
  2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
  3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

Currently, only one Australian jurisdiction’s birth certificate framework satisfies these criteria: the Tasmanian Births, Deaths and Marriages Registration Act 1999, which – following amendments in 2019 – now allows for complete self-identification of gender identity.[viii]

In modernising its approach to identity documentation, Western Australia should therefore follow the best practice example of Tasmania.

Recommendation 8:

Trans and gender diverse people in Western Australia should be able to access identity documents, including birth certificates, that reflect their gender identities, without the need for surgery or other medical treatments, and without doctors or other medical professionals playing the role of gate-keeper. Access to identity documents should be based on self-identification alone.

This should be achieved by adopting the best practice provisions of the Tasmanian Births, Deaths and Marriages Registration Act 1999.

Prohibiting Coercive Surgeries and Other Medical Treatments on People with Innate Variations of Sex Characteristics

Earlier in this submission, I called for the inclusion of a new protected attribute of sex characteristics, to ensure that people with innate variations of sex characteristics are protected against discrimination in all areas of public life.

While the introduction of this attribute would be an important step towards recognition of the human rights and dignity of intersex people, it is not nearly as important as ending what I consider to be the greatest violation of LGBTI rights in Australia: the ongoing performance of coercive surgeries and other involuntary medical treatments on people with innate variations of sex characteristics, and especially intersex children.

I therefore fully endorse the recommendation made by Intersex Human Rights Australia in its submission to the current consultation, that:[ix]

‘Protections from harmful practices in medical settings

In line with evolving best practice, as described in public commitments and action in the Australian Capital Territory and Victoria, and in line with recommendations of UN Treaty Bodies to Australia, we recommend that the Western Australian government enact separate protections from harmful practices in medical settings for people with innate variations of sex characteristics.’

Recommendation 9:

People with innate variations of sex characteristics in Western Australia should be legally protected from harmful practices in medical settings. Prohibitions on these practices should be developed in partnership with the intersex community and its representatives, including Intersex Human Rights Australia.

Prohibiting Conversion Practices

I welcome the Discussion Paper’s inclusion of a section on the prohibition of sexual orientation and gender identity conversion practices (on page 193).

In my view, such practices constitute psychological torture, and should be prohibited in all settings, including religious environments. This should apply irrespective of whether the person undergoing this torture is a minor or an adult (on the basis that it is not possible to give ‘informed consent’ to torture).

As to the question of whether Western Australia should adopt the models already in place in Queensland, the ACT, or Victoria, a combination of these approaches, or a new approach – and therefore whether this prohibition should be included in the Equal Opportunity Act or elsewhere – I defer to the views of survivors of conversion practices, and encourage the Commission to consult directly with the Brave Network and other survivor organisations.

Recommendation 10:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against sexual orientation and gender identity conversion practices. Prohibitions on these practices should be developed in partnership with survivors of these practices and their representatives, including the Brave Network.

Long Title and Objects Clause

Both the Long Title of the Act, and the Objects Clause (in section 3), should be updated to reflect improvements recommended above. This includes:

  • Replacing gender history with gender identity
  • Removing limitations in relation to gender identity (ie removing the qualifier ‘in certain cases’)
  • Adding sex characteristics, and
  • Updating sub-section 3(d) to provide that ‘to promote recognition and acceptance within the community of the equality of persons…’ applies to all protected attributes, including gender identity and sex characteristics.

This last change to the objects should also be reflected in the substantive provisions of the Act. For example, section 35ZD of the of Act currently provides an exemption covering ‘measures intended to achieve equality’ for people on the basis of sexual orientation:

‘Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is-

(a) to ensure that persons of a particular sexual orientation have equal opportunities with other persons in circumstances in relation to which provisions is made by this Act; or

(b) to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.’

There is no equivalent provision in relation to gender identity – but there should be.

Interpretive Provision

I note the discussion of a possible interpretive provision on pages 104 to 106 of the Discussion Paper. This includes an interpretive provision proposed by Christian Schools Australia on page 105.

This interpretive provision appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW – and it should be rejected for the same reasons it should be rejected in NSW, too.

This is best explained by looking at the Explanatory Memorandum for the One Nation Bill, and in particular the example of the Jewish employer of a publisher:

‘As for the remaining provisions of the Act, section 22L must be interpreted in accordance with new section 3 [the interpretive provision proposed by Christian Schools Australia], Principles of Act. In particular, the Siracusa Principles apply the requirement that limitations on religious manifestation must ‘pursue a legitimate aim and be proportionate to that aim’. The following example assists in clarifying this intended operation.

Example: A Satanist requests that a publisher prints material that promote the teachings of Satanism. A Jewish employee of the publisher requests that she not be required to facilitate the order. Having fundamental regard to the International Covenant on Civil and Political Rights and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, it would not be necessary or proportionate, for the employer to require her involvement in the order where alternative employees who do not have a genuine religious objection are available to facilitate the order. Similarly, it would not be necessary or proportionate for the employer to require her involvement in the order where alternative publishers are reasonably available to facilitate the order. In both of these cases, for the employer to require her involvement in the order would use ‘more restrictive means than are required’. In addition, to require such conduct would not be compatible with the international instruments stated at section 3.’

As I wrote in the Sydney Morning Herald last October,[x] this outcome is perverse, and creates more rather than less discrimination:

‘[A]n employee can refuse to perform the core component of their role (in this case, publishing materials) solely on the basis of their personal religious beliefs, even if this means sending the customer’s business to a competitor.

This would give employees the right to veto the decisions of their employer, including what goods and services are offered and to whom.

And what of the customer? In this example, they are turned away by the publisher because their religious belief does not accord with that of the employee, which is surely the type of discrimination that should be prohibited under a genuine Religious Discrimination Bill.

It’s important also to get a sense of how far this would go. If this is how the bill is intended to operate, employees may refuse to provide goods or services to a wide range of people because of the employee’s religious beliefs: not just to people from different religions, or no religion, but to single parents, unmarried couples, women, people with disability and lesbian, gay, bisexual, transgender or intersex people, among others.

Importantly, from the customer’s perspective, there is no way of knowing in advance whether a particular business will refuse to serve them. Based on the scenario set out in the explanatory notes, any commercial busines could turn away any customer based on the religious beliefs of an individual worker. That is a recipe for chaos.

And it will leave employers around the state in an invidious position: either they compel their employee to perform the inherent requirements of their job and risk the employee claiming discrimination on the basis of religious belief, or they refuse to provide goods and services to customers on the basis of who they are and guarantee not just loss of income, but risk a discrimination complaint for the customer instead.

It’s an unholy mess.’

Western Australia must avoid making the same mistakes as the extreme and unprecedented Bill proposed by One Nation in NSW, where one human right (‘religious freedom’) is prioritised over and above other human rights, including what is the fundamental purpose of anti-discrimination laws: the right to live free from discrimination.

Interpretive provisions which single out ‘religious freedom’ must therefore be rejected.

Additional Protected Attributes

I would like to express my in-principle support for the inclusion of additional protected attributes within the Equal Opportunity Act, particularly where those attributes may be disproportionately relevant to the LGBTI community. These include:

  • Lawful sexual activity (discussed on page 123), and
  • Irrelevant medical record (discussed on page 121).

In terms of this latter attribute, I also endorse the recommendation made by Intersex Human Rights Australia in their submission to the current inquiry that:[xi]

‘In line with best practice international developments and recommendations for Australian jurisdictions, we recommend that the Western Australian government prohibit genetic discrimination in insurance and employment.’

Finally, I support the inclusion of a new protected attribute of ‘irrelevant criminal record’ (as discussed on page 120). I note the Discussion Paper’s acknowledgement there are already some protections for ‘expunged homosexual convictions’ in relation to work as created by the Historical Homosexual Convictions Expungement Act 2018 (WA).

While I believe expunged homosexual convictions would likely fall within irrelevant criminal record – and therefore be protected against discrimination in areas beyond work – this should include clarification that expunged homosexual convictions will always be ‘irrelevant’.

This is in recognition of the fact such convictions are solely the product of state-sponsored homophobia, biphobia and transphobia, and should never have constituted offences in the first place.

Definition of Religious or Political Conviction

I note the Discussion Paper considers whether to add a definition in relation to the existing protected attribute of ‘religious or political conviction’.

As part of this Discussion, an overly-expansive, and in my view, entirely-inappropriate definition for religion is provided by Christian Schools Australia (see page 122). In fact, this definition appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW.

This would introduce an unnecessarily vague test for determining whether something constitutes religious belief or activity. It would be almost impossible to apply in practice, and should be rejected.

Instead, I submit that, should the Commission recommend the inclusion of definitions for political conviction and religious conviction, it should do so on the basis of the definitions in the ACT Discrimination Act 1991, namely:

‘political conviction includes-

(a) having a political conviction, belief, opinion or affiliation; and

(b) engaging in political activity; and

(c) not having a political conviction, belief, opinion or affiliation; and

(d) not engaging in political activity.’

‘religious conviction includes-

(a) having a religious conviction, belief, opinion or affiliation; and

(b) engaging in religious activity; and

(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and

(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and

(e) not having a religious conviction, belief, opinion or affiliation’ and

(f) not engaging in religious activity.’

Discrimination in Provision of Goods and Services Where Motivated by Religious Belief

While on the subject of religious belief, I would like to express my strong opposition to any proposal to allow individuals and businesses to refuse to provide goods and services, including on the basis of sexual orientation and gender identity, where that refusal is motivated by religious belief (as discussed on page 173).

Such a proposal would allow significant new discrimination against LGBT people individually, and LGBT couples. This discrimination would also be unpredictable in its operation – LGBT people going about their everyday life would know that any potential interaction could involve being lawfully discriminated against because of how they identity, or who they love.

The introduction of a new ‘exception’ of this kind would seriously undermine the purpose of having an anti-discrimination law in the first place, and should be categorically rejected.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details supplied below, should you require additional information.

Sincerely

Alastair Lawrie


Footnotes:

[i] For a comparative analysis of LGBTI anti-discrimination laws across Australia, please see: ‘A Quick Guide to Australian LGBTI Anti-Discrimination Laws. https://alastairlawrie.net/2017/07/29/a-quick-guide-to-australian-lgbti-anti-discrimination-laws/

[ii] These three areas draw from my article about the WA legislation: ‘What’s Wrong With Western Australia’s Equal Opportunity Act 1984?’ https://alastairlawrie.net/2016/10/23/whats-wrong-with-western-australias-equal-opportunity-act-1984/

[iii] While the definition of ‘recognised transgender person’ in section 4 of the NSW Anti-Discrimination Act 1977 is similarly restrictive, the interpretive clause in section 38A makes it clear that NSW anti-discrimination protections apply to transgender people with binary gender identities irrespective of whether their gender identity has been recognised by the State.

[iv] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[v] For a comparative analysis of LGBTI anti-vilification laws across Australia, please see: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification’. https://alastairlawrie.net/2020/06/01/did-you-know-most-australian-jurisdictions-dont-prohibit-anti-lgbti-vilification/

[vi] For a comparative analysis of birth certificate legislation across Australia, please see: ‘Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates’. https://alastairlawrie.net/2020/05/02/did-you-know-trans-people-in-nsw-and-queensland-still-require-surgery-to-update-their-birth-certificates/

[vii] As articulated in this post from my website: ‘Identity, Not Surgery’. https://alastairlawrie.net/2018/07/17/identity-not-surgery/

[viii] The approach in Victoria, via the Births, Deaths and Marriages Registration Amendment Act 2019, comes close, including that it removes requirements for medical treatment, and removes medical gatekeepers to accessing new identity documents. However, it does not fully satisfy the criteria of self-determination, because under section 30A, an applicant must include a ‘supporting statement’ from another person who both ‘believes that the applicant makes the application to alter the record of the sex of the applicant in good faith, and supports the application.’

[ix] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[x] Alastair Lawrie, ‘Religious discrimination bill will create an unholy mess’, Sydney Morning Herald, 26 October, 2020, available here: https://www.smh.com.au/national/nsw/religious-discrimination-bill-will-create-an-unholy-mess-20201022-p567jx.html

[xi] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

Pathetic, and antipathetic, in equal measure

Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’

Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.

That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]

As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.

Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:

‘gender identity has the same meaning as in the Sex Discrimination Act 1984.

intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]

And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.

It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.

*****

Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’

Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.

In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.

Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.

The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]

The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.

This amendment was a potential win for them. Almost 28 months into a maximum 36-month parliamentary term, it is increasingly likely the Government will not pass a single pro-LGBTI Bill before the next election (including a failure to introduce legislation to implement Scott Morrison’s since-broken promise to protect LGBT students in religious schools against discrimination).

If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.

Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.

*****

The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:

‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’

Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.

For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.

Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:

‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]

Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.

Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.

The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.

Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’

No. No, you don’t. If you did, you would have voted for these amendments.

*****

Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.

Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.

[A list that, from my perspective, would include (in no particular order):

  • Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
  • Defunding an evidence-based program against anti-LGBTI bullying in schools
  • Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
  • Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
  • Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]

It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.

This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’

Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.

And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.

As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.

In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.

The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.

How pathetic in their lack of principle, and basic decency.

How antipathetic to the human rights and dignity of their fellow Australians.

In roughly equal measure.

Morrison, Turnbull and Abbott, divided by political ambition but united in their pathetic, and antipathetic, approach to LGBTI rights.

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

Footnotes:


[i] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.

[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.

Northern Territory Election: Anti-Discrimination Questions

[Update: For a response from the re-elected Labor Government, please scroll to the end of the post]

The Northern Territory election will be held on Saturday 22 August 2020. One of the many issues that could be affected by the outcome is the future of the Anti-Discrimination Act (NT), which commenced on 1 August 1993.

This legislation is now out-dated, and does not offer appropriate protection to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. For more information on its problems, see: What’s Wrong With the Northern Territory Anti-Discrimination Act?

While the Northern Territory Department of the Attorney-General and Justice conducted a public consultation on modernisation of the Act in 2018, no reforms have been proposed or progressed prior to the current election campaign.

In this context, I have sent the below questions to the leaders of the three main parties contesting the election: Territory Labor; the Country Liberal Party; and the Territory Alliance. If I receive answers from any Party prior to the poll, they will be published below.

**********

8 August 2020

The Northern Territory Anti-Discrimination Act is now more than a quarter of a century old, and does not offer appropriate protections against discrimination for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

If your Party forms government after the election on 22 August 2020, will you commit to, as a matter of priority:

  • Update the definition of ‘sexuality’ to be consistent with the definition of ‘sexual orientation’ in the Sex Discrimination Act 1984 (Cth)?
  • Introduce a new protected attribute of ‘gender identity’, to ensure all trans and gender diverse people are protected against discrimination?
  • Introduce a new protected attribute of ‘sex characteristics’, to ensure all intersex people are protected against discrimination?
  • Amend section 37A(a)(ii) to remove the ability of religious schools to discriminate against teachers and other staff members simply because they are lesbian, gay, bisexual and transgender (LGBT)?
  • Remove the ability of religious organisations to discriminate against LGBT people in relation to accommodation under section 40(3)?
  • Introduce new prohibitions against vilification, including on the basis of race, as well as in relation to sexual orientation, gender identity and sex characteristics?

Please note that, if received, your answers will be published on www.alastairlawrie.net, and at ‘No Homophobia, No Exceptions’.

Sincerely,

Alastair Lawrie

No responses were received from Territory Labor, the Country Liberal Party or Territory Alliance prior to the election on 22 August 2020.

**********

The below response was received from Labor Attorney-General Selena Uibo on 5 October 2020. It is disappointing in two key ways. First, most obviously, they did not comment in time for NT voters to consider ahead of the 22 August election.

Second, and more importantly, it abdicates responsibility for fixing the outdated NT Anti-Discrimination Act, preferring to wait until after the Australian Law Reform Commission (ALRC) to complete its review of religious exceptions at Commonwealth, state and territory law.

However, as I have written previously, that review has been delayed until 12 months after the Commonwealth Religious Discrimination Bill has been *passed* by Commonwealth Parliament, which a) hopefully will not happen and b) if it does, won’t be until the first half of 2021 – meaning the ALRC will not report until 2022 at the earliest.

There is absolutely no justification for the re-elected NT Government to postpone taking urgent action to provide LGBTI Territorians with essential protection against discrimination and vilification. Anyway, here is the short response from Minister Uibo:

Dear Alastair,

I refer to your correspondence dated 8 August 2020 in relation to the Anti-Discrimination Act 1991.

The Territory Labor Government is committed to making changes to modernise the Territory legislation based on feedback received.

The Commonwealth Government have referred a number of recommendations following the Federal Report into Religious Freedoms to the Australian Law Reform Committee [sic]. Given the impact that Commonwealth legislation can have on the Northern Territory, we have been awaiting their report, before any changes are considered. This Report was originally due in April 2020; however, this date has now been extended to allow passage of the Federal Religious Discrimination Bill. It is expected that the Law Reform Committee [sic] Report will be returned sometime in 2021.

Thank you for taking the time to write to me regarding this important issue.

Yours sincerely,

Selena Uibo

Untitled design (1)

Chief Minister Michael Gunner (Territory Labor), Opposition Leader Lia Finocchiaro (Country Liberal Party) and Territory Alliance Leader Terry Mills.

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I will be alone forever, like no-one will love me, like I should just kill myself because it would be easier.

And:

… disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

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

Australian trans, gender diverse and intersex employees need better protection, too

On Tuesday morning, Australian news sites and social media feeds alike trumpeted the US Supreme Court decision to protect lesbian, gay, bisexual and transgender (LGBT) employees against discrimination.

As with too many issues of social justice, however, it seems our ability to see discrimination clearly is much better from across the vast Pacific Ocean than it is at home.

I wonder how many of those who shared that welcome news are aware the Fair Work Act here does not protect trans, gender diverse and intersex employees against adverse action and unlawful termination?

That’s because the relevant provisions of our industrial law (sections 351 and 772 of the Fair Work Act 2009 (Cth)) cover ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but not gender identity or sex characteristics (intersex status).

The consequence of this exclusion is that trans, gender diverse and intersex employees who are subjected to abuse at work, or even dismissed, on the basis of who they are cannot make a complaint to the Fair Work Commission.

This lack of protection is particularly harmful given these are populations that already experience low rates of employment.

A recent survey by Equality Australia found that, while the proportion of LGBTIQ+ people aged 25 to 64 years who were unemployed or looking for work increased from 6% pre COVID-19 to 10.8% post COVID-19, for trans and gender diverse people specifically it rose from an already-high 10.5% to a shocking 15.2% now.

That’s almost 1-in-6 trans and gender diverse adults unemployed today, with the potential to go much, much higher in coming months.

I raised the lack of protection for trans, gender diverse and intersex employees with the Turnbull Government in 2018, with then-Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, rejecting calls to address this legislative gap, instead pointing to general discrimination protections in the Sex Discrimination Act 1984 (Cth) (SDA).

And it’s true that gender identity and intersex status are covered in the SDA – but this ignores the fact complaints to the Australian Human Rights Commission can take much longer to conciliate, and enforcing them may require action in the Federal Court or Federal Circuit Court, at the risk of significant costs orders against the complainant.

In contrast, arbitration by the Fair Work Commission can be much quicker, and it is generally a ‘no-costs’ jurisdiction.

That’s exactly why sex, sexual orientation, marital status, family responsibilities and pregnancy are covered under *both* the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits their circumstances.

Women, and even lesbians, gay men and bisexuals, discriminated against in the workplace can exercise that choice. As can employees discriminated against on the basis of race, disability and age, who are all protected by their respective federal discrimination Acts, as well having access to the Fair Work Commission.

That choice is denied to some of the most vulnerable members of our community. Trans, gender diverse and intersex employees are confronted by the possibility of longer wait times, and potentially higher costs, to address the same type of dispute.

Of course, a lot has happened in the two years since Minister Laundy refused to fix this problem. The economic crisis brought on by coronavirus means that the Government, business and unions are now involved in consultations on how to reform the industrial relations regime to get people back to work.

This is an ideal opportunity for Prime Minister Morrison, and Attorney-General Porter – who is also the Minister for Industrial Relations – to help trans, gender diverse and intersex Australians into employment, and to protect them against possible mistreatment once there.

This is obviously not the only employment-related discrimination provision that needs updating (hello LGBT teachers in religious schools outside Tasmania and the ACT, LGBT employees in religious aged care homes and other service delivery organisations outside Tasmania, bisexual employees in the NSW public service, and non-binary and intersex employees in the NSW, Victorian, Queensland, WA and NT public services, too – see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

Indeed, Australia’s LGBTI anti-discrimination regime could perhaps be described as a ‘patchwork’ – except it is still missing far too many patches and for too many of us it simply doesn’t work.

But it is possibly the problem that is most easily fixed. It would only take a couple of quick legislative stitches to ensure trans, gender diverse and intersex people finally enjoy the cover of the Fair Work Act.

Take Action

As indicated above, the Morrison Government is currently engaged in consultation with business and unions about its coronavirus-related industrial relations reforms. Which means now is the perfect time to ask for the Fair Work Act 2009(Cth) to be amended to cover gender identity and sex characteristics (intersex status). Why not start with the AG himself:

The Hon Christian Porter MP

Attorney-General and Minister for Industrial Relations

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

(02) 6277 7300

Online contact

Twitter: @cporterwa

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view the only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.

Untitled design-4

The US Supreme Court decision highlights the lack of Fair Work Act coverage of trans, gender diverse and intersex employees in Australia.

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

Cooperative workplaces must be trans and intersex inclusive workplaces

The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.

 

Submissions are due by Friday 28 February 2020. The following is mine:

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.

 

I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

In this submission I will focus on the following questions posed in the paper:

2. To what extent do employees benefit from cooperative workplaces?

7. How does the Australian industrial relations system support and encourage cooperative workplaces?

10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …

e) Fair treatment policies and procedures.

 

From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.

 

If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.

 

Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.

 

Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).

 

For example, the adverse action provisions in sub-section 351(1) cover:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction, and
  • Social origin.

 

Note that this long list does not protect trans, gender diverse or intersex people.

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.

 

There are other exclusions too:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.

 

Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.

 

I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.

 

I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.

 

While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:

 

“The Sex Discrimination Act 1984 is the principal legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.”

 

Which, to be blunt, entirely misses the point.

 

First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.

 

Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.

 

Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.

 

Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.

 

With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.

 

Recommendation 1

The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the Sex Discrimination Act 1984:

‘Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

 

Recommendation 2

The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:

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

 

If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.

 

In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).

 

And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.

 

Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.

 

Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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

Submission to Victorian Inquiry into Anti-Vilification Protections

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

Submitted via: avpinquiry@parliament.vic.gov.au

Thursday 19 December 2019

 

To the Committee

 

Inquiry into Anti-Vilification Protections

 

Thank you for the opportunity to make a submission on this important subject.

 

I do so as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, having previously served on the Committee of Management of the Victorian Gay & Lesbian Rights Lobby (2004-05, and 2007).

 

In this submission, I will primarily focus on term of reference 8: ‘Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act.’

 

As the Committee is aware, Victoria currently only provides protection against vilification on the basis of two attributes – race (section 7) and religion (section 8) – under the Racial and Religious Tolerance Act 2001 (Vic).

 

From an LGBTI perspective this is incredibly disappointing, especially because the similar absence of LGBTI anti-vilification protections under Commonwealth law, which only covers race,[i] means that lesbian, gay, bisexual, transgender and intersex Victorians currently have no vilification protections at either level.

 

This stands in contrast to the laws of several other Australian jurisdictions.

 

For example, Tasmania protects against ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ sexual orientation,[ii] gender identity[iii] and intersex variations of sex characteristics.[iv]

 

Tasmania’s best practice legislation also prohibits ‘conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute’, which again includes sexual orientation, gender identity and intersex variations of sex characteristics.[v]

 

The Australian Capital Territory protects against ‘incite[ment of] hatred toward, revulsion of, serious contempt for, or severe ridicule of’ persons on the basis of gender identity,[vi] intersex status[vii] and sexuality.[viii]

 

Although I note that intersex advocates have called for protection of the attribute of ‘sex characteristics’,[ix] rather than ‘intersex status’, reflecting both the biological rather than identity-based nature of variations of sex characteristics, and to promote consistency with the Yogyakarta Principles plus 10.[x]

 

Queensland also prohibits the ‘incite[ment of] hatred towards, serious contempt of, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person of members of the group.’[xi]

 

Meanwhile, NSW has adopted two separate, and in some ways contradictory, approaches to vilification. It provides civil protection against vilification (which includes ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of’) to binary[xii] transgender people,[xiii] and lesbians and gay men.[xiv]

 

On the other hand, in 2018 NSW Parliament amended the Crimes Act 1900 to provide that ‘[a] person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence’ and nominated sexual orientation,[xv] gender identity[xvi] and intersex status.[xvii]

 

Overall, then, LGBTI people are protected against vilification in both Tasmania and the Australian Capital Territory, LGBT people are protected in Queensland, and lesbians, gay men and some trans people have access to civil protection in New South Wales, while all LGBTI people are covered by the narrower criminal offence of ‘publicly threatening or inciting violence’ in that state.

 

Of course, the fact other jurisdictions have adopted a different approach to this issue is not necessarily a compelling argument that Victoria should do the same. However, I do support such an expansion for two main reasons.

 

First, in principle, there is no reason why vilification on the basis of race or religion should be treated any differently to vilification on the basis of sexual orientation, gender identity or sex characteristics.

 

Vilification on any of these attributes is serious, and racial or religious vilification is no more serious than anti-LGBTI vilification. This is especially so given the harm caused by each type of vilification can be severe, and therefore the conduct which contributes to this harm should be prohibited, irrespective of whether it is racist, anti-religious or homophobic, biphobic, transphobic or intersexphobic.

 

Second, in practice, lesbian, gay, bisexual, transgender and intersex Australians remain exposed to unacceptably high rates of discrimination and vilification on the basis of who they are.

 

This was particularly demonstrated during the Commonwealth Government’s 2017 Same-Sex Marriage Postal Survey, and its lingering aftermath.

 

This unnecessary, wasteful and divisive vote on the rights of a minority group encouraged people to ‘have their say’ about LGBTI Australians, and inevitably (and, it should be noted, entirely predictably) stirred up significant amounts of public homophobia, biphobia, transphobia and intersexphobia against us.

 

Sadly, once the genie of anti-LGBTI bigotry was deliberately let out of the bottle by the Turnbull Liberal-National Government, it will take the rest of us many years, if not decades, of concerted effort to put it back in again.

 

This can be seen by the ongoing hate-based campaign targeting trans and gender diverse people, and especially trans children, which appears on an almost daily basis in our nation’s newspapers, and elsewhere.

 

As we enter the 2020s, the homophobia, biphobia, transphobia and intersexphobia whipped up by the Commonwealth Government in the last decade still haunts us, and will likely continue to do so for some time yet.

 

For both of these reasons, principled and practical, I urge the Victorian Parliament to follow the lead of other jurisdictions and introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics.

 

Recommendation 1: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of:

  • sexual orientation
  • gender identity, and
  • sex characteristics.

 

I note that the Racial and Religious Tolerance Amendment Bill 2019, introduced by Fiona Patten MLC, proposes to do exactly that. It also proposes to add gender, and disability, to the list of attributes that would be protected against vilification under that legislation.

 

While I am not an expert on gender or disability-based vilification, for (at least) the first of the reasons outlined above, I can see no good reason why Victorians should not also be protected against vilification on the basis of these attributes.

 

Recommendation 2: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of gender and disability.

 

One final issue I would like to address in this submission also arises through Ms Patten’s Racial and Religious Tolerance Amendment Bill 2019, and specifically relates to proposed amendments to section 24 of the principal Act which creates the offence of serious racial vilification.

 

These amendments would add the words ‘or recklessly’ to, and remove the words ‘the offender knows’ from, the fault element of this offence.

 

I support both changes. The first change would help create consistency with the offences established in other jurisdictions (including the recently-introduced NSW Crimes Act 1900 provisions).

 

The second would remove the ‘offender knows’ subjective test from this offence, which is important because such harmful conduct should be prohibited irrespective of whether the specific offender knew that was the likely outcome.

 

Recommendation 3: That serious vilification offences in the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit intentionally or recklessly engaging in conduct that is likely to incite hatred, or to threaten, or incite others to threaten, physical harm or harm to property.

 

Thank you for taking this submission into consideration as part of this inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely

Alastair Lawrie

 

Fiona Patten

Fiona Patten MLC, whose Racial and Religious Tolerance Amendment Bill 2019 would protect LGBTI Victorians against vilification.

 

Footnotes:

[i] Section 18C Racial Discrimination Act 1975 (Cth).

[ii] Section 19(c) Anti-Discrimination Act 1998 (Tas).

[iii] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[iv] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[v] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[vi] Section 67A(1)(b) Discrimination Act 1991 (ACT).

[vii] Section 67A(1)(d) Discrimination Act 1991 (ACT).

[viii] Section 67A(1)(g) Discrimination Act 1991 (ACT).

[ix] Darlington Statement, March 2017, Article 9: ‘We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’

[x] Which defines sex characteristics as ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ Yogyakarta Principles plus 10, 10 November 2017.

[xi] Section 124A Anti-Discrimination Act 1991 (Qld).

[xii] Because the definition of transgender in section 38A only protects a person:

(a) ‘who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[xiii] Section 38S Anti-Discrimination Act 1977 (NSW).

[xiv] Section 49ZT Anti-Discrimination Act 1977 (NSW).

[xv] Section 93Z(1)(c) Crimes Act 1900 (NSW).

[xvi] Section 93Z(1)(d) Crimes Act 1900 (NSW).

[xvii] Section 93Z(1)(e) Crimes Act 1900 (NSW).

What Gender Reveal Parties Actually Reveal

If the Germans hadn’t invented the term schadenfreude several centuries ago, we would have needed to create it to describe the most 21st century of phenomena: laughing at gender reveal fail videos.

These videos are (unintentionally) hilarious not just because when they go wrong, they go very wrong. With people coming up with increasingly intricate and in many cases bizarre scenarios to ‘stand out’, the potential for things to go awry has grown exponentially.

They are also deeply funny because the concept of a gender reveal party itself is inherently problematic, which means that laughing at the misfortunate of those involved is usually a guilt-free pleasure.

If you’re reading this and still think gender reveal parties are just a bit of harmless fun, perhaps it is useful to consider what exactly it is these parties are revealing – which is far more about the parent(s) than about their child(ren).

First, they reveal that some parents don’t seem to understand the difference between sex and gender.

Sex is biological (defined by the Oxford English Dictionary as ‘either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’).

On the other hand, gender is identity-based (with the Yogyakarta Principles defining gender identity as ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’).[i]

Given it is impossible to know a child’s gender identity before or at birth (and usually for years after that), this means these celebrations should at the very least be renamed ‘sex reveal parties’.

Second, they reveal that some parents don’t seem to understand that both sex and gender are much more complicated than just male and female.

At its very core, a gender reveal party is an attempt to place an unborn child (or children) into one of two boxes: boy or girl.

And yet, in 2019, we know that gender identity is a spectrum, and there is a wide range of other options, including non-binary.

We also know that some children will be ‘born with physical sex characteristics that don’t fit medical and social norms for female or male bodies’ (the definition of intersex from Intersex Human Rights Australia).[ii]

Gender reveal parties therefore deliberately exclude some of the beautiful diversity of the human experience.[iii]

Third, they reveal that some parents are willing participants in a reductivist view of gender.

Gender reveal parties simplify the concepts of male and female into blue and pink respectively, as though entire genders can be signified by, even summed up by, a colour. When there is obviously more diversity within genders, and more similarities across people of different genders, than such a basic dichotomy can hope to represent.

Somewhat amusingly, these colours are also the exact opposite of those from just a century ago. From US Ladies Home Journal in June 1918:

‘The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl.’

Mush less amusingly, while the colours have changed, some of those gender stereotypes remain and gender reveal parties tend to entrench, rather than question, them.

Based on these three factors, gender reveal parties can actually be harmful. By supporting a view that gender will match sex assigned at birth, they can make life much more difficult for trans and gender diverse children.

By raising expectations that babies will be born with sex characteristics that are exclusively male or female, they can erase intersex children (and even potentially increase pressure for unnecessary surgeries post-birth to ensure their bodies match these societal ‘norms’).

And by entrenching the notion that boys and girls are inherently different, and reinforcing stereotypes about how they will (or should) behave, gender reveal parties place artificial restrictions on all of us, and our behaviours.

It may sound like I am unsympathetic to the parents who hold gender reveal parties. I’m not, at least in part because most are simply replicating the actions of those around them (and those they follow on social media), and probably haven’t considered any of the issues described above. They are acting out of ignorance rather than malice.[iv]

I’m also sympathetic because, as a society, we seem to be placing an ever-greater emphasis on gender, certainly much more than I can remember as a child growing up in the 1980s. From unnecessarily gendered toys, to unnecessarily gendered toiletries, and even unnecessarily gendered grocery items, heightened expectations of ‘gender conformity’ are all around us – so it is perhaps only natural they will be felt most keenly by expecting parents.

The challenge then is what we can do to overcome these norms, especially the emerging norm that parents will hold gender reveal parties in the first place.

I have four suggestions to start, from the easiest to the most difficult:

  1. Don’t hold a gender reveal party

If you are having a child, simply refuse to have one of these ‘celebrations’. Which is easy for someone like me to say (a cis gay man who has decided, with his partner, not to have children, at least in part because of the climate emergency), so let’s move on…

  1. Don’t attend gender reveal parties

If you are invited to one of these ‘celebrations’, don’t attend. If people all stopped going, parents would stop holding them.

  1. Let the person know why you’re not attending

This is clearly more difficult than simply not turning up, especially because many of us prefer to avoid confrontation. But if we are to do the hard yards of ending this social norm, then we should take the time to explain to the person who has sent the invitation why you won’t be there.

  1. Stop asking ‘What are you having?’

Obviously, this is another degree of difficulty again, especially because this is something we’ve been conditioned to ask, usually first, when someone says they are pregnant (and something I have been guilty of, on more than one occasion).

But what does it actually matter? And aren’t there more interesting and/or important questions to ask, like ‘What are you looking forward to?’ ‘What are you nervous about?’ ‘Are you prepared?’ and ‘Is there anything I can do to help?’

For those having difficulty making this mental adjustment, consider thinking of it this way. When you are asking ‘What are you having?’ what you’re really asking is ‘What are your child’s sex chromosomes and/or genitalia?’ and ‘What gender do you currently intend to raise your child even though you cannot know now their eventual gender identity?’

Rationally, an expecting parent who knows the difference between sex and gender could also respond to the ‘What are you having?’ inquiry by saying that they’ll get back to the questioner in five, ten, 15 or even 20 years, when the child decides for themself.

Which brings me to the primary exception to my ‘no gender reveal parties’ stance: where trans and gender diverse people announce their own gender identity. This is truly something to celebrate, especially for those who’ve overcome years or even decades of transphobia from families, schools, and society in general.

[I suppose I would also make an exception for parents who hold a gender reveal party and then release a colour like green or brown and tell attendees that they’ll let their child determine their identity for themselves.]

Other than that, gender reveal parties are a social phenomenon that has risen to prominence incredibly quickly over the past decade – and hopefully will recede just as quickly in the early 2020s.

Indeed, that’s the view of the woman whose 2008 post is widely-credited as popularising ‘gender reveal parties’, Jenna Karvunidis. From NPR in July 2019:[v]

‘Plot twist! The baby from the original gender reveal party is a girl who wears suits,’ Karvunidis says. ‘She says ‘she’ and ‘her’ and all that, but you know she really goes outside gender norms’.

… Karvunidis says her views on sex and gender have changed, especially when she’s talking to her daughter.

‘She’s telling me ‘Mom, there are many genders. Mom, there’s many different sexualities and all different types,’ and I take her lead on that,’ Karvunidis says.

She says she does have some regrets and understands these parties aren’t beneficial to everyone.

‘I know it’s been harmful to some individuals. It’s 2019, we don’t need to get our joy by giving others pain,’ she says. ‘I think there’s a new way to have these parties.’

And that idea is as simple as just eating cake.

‘Celebrate the baby,’ she says. ‘There’s no way to have a cake cut into it, to see if they’re going to like chess. Let’s just have a cake.’

Which is a great idea. And then to eat any leftovers while watching videos of gender reveal party fails because, let’s face it, some of them are funny as hell.

Untitled design (5)

An infamous 2017 gender reveal party fail, which caused a 47,000 acre fire in Arizona.

 

Footnotes:

[i] Yes, I’m aware that both the concepts of sex and gender, and the relationship between them, are far more complex. However, in the context of ‘gender reveal parties’ it’s clear these celebrations are based on biological sex (chromosomes and/or genitalia) rather than identity-based ideas of gender.

[ii] IHRA website, here.

[iii] We should note here that variations in sex characteristics is separate to non-binary gender identities, with many intersex people identifying with the ‘sex’ they were assigned at birth. Again for the Intersex Human Rights Australia website:

‘Some intersex people and some non-intersex (‘endosex’) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognize the diversity of the intersex population, and in this case even the existence of intersex boys and girls, and intersex women and men.’

[iv] Of course, some parents possibly are deliberately setting expectations that their children will be either male or female, and that they will ‘act accordingly’ (including not identifying as trans or gender diverse), to which I say ‘fuck you’.

[v] Woman who popularized gender reveal parties says her views on gender have changed.

Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

Update: In June 2020, the Tasmanian Law Reform Institute published its final report from this inquiry. You can find a copy here.

In terms of its review of the Tasmanian Parliament’s ground-breaking 2019 birth certificate reforms, it found that:

“The Final Report concludes that the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity… The Final Report further concludes that the new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.”

That is both a welcome finding by itself, and confirmation other states and territories should be looking to the Tasmanian legislation as a ‘best practice’ approach on which to base their own laws.

In terms of medical interventions on children born with intersex variations of sex characteristics, the “Report makes a number of recommendations intended to eliminate the practice of non- consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment.”

Recommendation 7 in particular stated that:

The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a)  it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b)  it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Once again this is a welcome development. It is now up to the Tasmanian Government to implement these reforms as quickly as possible (although obviously in consultation with intersex advocates and organisations like Intersex Human Rights Australia) and hopefully start the process of ending this significant human rights abuse.

**********

Original post: The Tasmanian Law Reform Institute is currently conducting an inquiry into matters arising from the passage of trans and gender diverse birth certificate reforms earlier this year, as well as issues relating to coercive surgeries and other medical treatments on children born with variations of sex characteristics.

The following is my personal submission, focusing on the latter topic. Submissions are due Tuesday 20 August, and you can find more details here.

**********

Submission to Tasmanian Law Reform Institute Inquiry into Legal Recognition of Sex and Gender

Tasmanian law Reform Institute

Private Bag 89

Hobart, TAS 7001

via Law.Reform@utas.edu.au

Wednesday 14 August 2019

To whom it may concern

Submission re Inquiry into Legal Recognition of Sex and Gender

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

I make this submission as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and, particularly for the purposes of this inquiry, as an ally to intersex Australians.

In this submission I will respond, generally, to those questions (5 through 9) that are focussed on the question of coercive surgeries and other medical treatments on children born with variations of sex characteristics.
These invasive and involuntary medical interventions, which continue in Australia today, are one of the biggest human rights violations against any members of the LGBTI community.

Indeed, given the serious, lifelong consequences of these human rights violations, I believe addressing coercive surgeries and medical treatments on intersex children is one of the most important human rights issues in Australia. Period.

Which is why it is so disappointing that so little action has been taken since the ground-breaking 2013 Senate Inquiry into Involuntary or Coerced Sterilisation of Intersex People in Australia.[i]

Specifically, in the past six years, the Commonwealth Liberal-National Government has failed to make any progress whatsoever in ending these unjustified and unacceptable practices.

In this context, I obviously welcome the additional focus on this issue by the Tasmanian Law Reform Institute.

This includes asking relevant questions in terms of what should be done to address this problem, especially in question 5 (which includes consideration of court approvals, legislative prohibitions with possible criminal penalties, independent advocates, independent counselling and advice, and specialist tribunals).

However, I also note that the same issues are being considered, at the moment, by the Australian Human Rights Commission (AHRC) as part of its own investigation of this topic. [ii]

This has included a public consultation process from July to September 2018,[iii] and ongoing involvement of and consultation with intersex people.

I understand that this investigation is expected to conclude by the end of 2019, with a report and recommendations for how these human rights violations should be addressed nation-wide.

The AHRC is relevant to this submission in three main ways.

First, I reiterate the five recommendations made to that investigation, including:

Recommendation 1. Australian Governments must introduce legislation to prohibit deferrable medical interventions, including surgical and medical interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.

Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.

Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.

Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.

Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:

  • Peer support of individuals and families to inform decision-making about medical interventions
  • Serving on the new independent oversight body that reviews medical interventions
  • Broader peer support for all members of the intersex community, and
  • Systemic advocacy for all people with variations of sex characteristics.

Second, I express my support for the submission made by Intersex Human Rights Australia (IHRA) to the AHRC investigation[iv] (a submission that was also endorsed by the AIS Support Group Australia, Disabled People’s Organisations Australia, LGBTI Legal Service, and People with Disability Australia).

I note in particular that on page 66 of their submission, in response to the question ‘Should all non-emergency and/or deferrable medical interventions that alter a child’s sex characteristics, where the child does not have legal capacity to consent, be prohibited by law? If so, should this prohibition be civil or criminal?’ IHRA responded that:

We support the Darlington Statement’s call for criminal prohibitions of all non-deferrable medical interventions that alter a child’s sex characteristics [emphasis added].

I encourage the Tasmanian Law Reform Institute to adopt the IHRA submission as the primary foundation of its approach to these issues (and, wherever there are conflicts between my own recommendations and the position of IHRA, I defer to them on the basis that intersex people should have the right to self-determination as well as the right to bodily autonomy).

Third, given the ongoing AHRC investigation – covering largely the same issues as those featured in questions 5 through 9 of this inquiry – I encourage the Tasmanian Law Reform Institute to consider how it can work together with the Australian Human Rights Commission, and contribute to its efforts. This would potentially avoid any duplication in work (including duplication in the calls on intersex people to make multiple submissions on the same subject matter).

As indicated earlier, I welcome the focus provided by the Tasmanian Law Reform Institute to the issue of ongoing human rights violations against children born with variations of sex characteristics.

It is my sincere hope that the AHRC process, possibly with input from the Tasmanian Law Reform Institute, can make a series of practical recommendations to end coercive surgeries and other involuntary medical treatments on intersex children.

And that ultimately, the Commonwealth Government, and all State and Territory Governments, work together to implement these recommendations as quickly as possible so that these human rights violations end once and for all.

Thank you for taking this submission into consideration. Please do not hesitate to contact me, at the details below, should you require further information.

Sincerely

Alastair Lawrie

Footnotes:

[i] See the Final Report of that Senate Inquiry here and my personal submission to that inquiry here.

[ii] See the Australian Human Rights Commission website.

[iii] See my submission to that consultation here.

[iv] The IHRA submission to the AHRC investigation can be found here, and is attached with this submission.

1200px-Intersex_flag.svg

Submission to the Australian Law Reform Commission Review of the Family Law System

Australian Law Reform Commission

via familylaw@alrc.gov.au

 

Tuesday 13 November 2018

 

To whom it may concern

 

Submission in response to the Review of the Family Law System Discussion Paper

 

Thank you for the opportunity to provide a submission to this review.

 

While there are a number of important issues raised in the Discussion Paper, I will restrict my comments to one issue in particular: the welfare jurisdiction, and specifically its impact on people born with variations in sex characteristics.

 

This issue is discussed in Chapter 9 of the Discussion Paper, and specifically addressed in Question 9-1:

 

In relation to the welfare jurisdiction:

  • Should authorisation by a court, tribunal, or other regulatory body be required for procedures such as sterilisation of children with disability or intersex medical procedures? What body would be most appropriate to undertake this function?
  • In what circumstances should it be possible for this body to authorise sterilisation procedures or intersex medical procedures before a child is legally able to personally make these decisions?
  • What additional legislative, procedural or other safeguards, if any, should be put in place to ensure that the human rights of children are protected in these cases?

 

I will seek to answer these question as both an advocate for the overall lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and specifically as an ally for intersex people, including as a supporter of Intersex Human Rights Australia (IHRA).

 

In this capacity – as an intersex ally – I have affirmed the March 2017 Darlington Statement of intersex advocates and organisations from Australia and Aotearoa/New Zealand.

 

That Statement provides a clear set of principles which guide the response to the current Discussion Paper. This includes:

 

Article 5: Our rights to bodily integrity, physical autonomy and self determination.

 

Article 7: We call for the immediate prohibition as a criminal act of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent. We call for freely-given and fully informed consent by individuals, with individuals and families having mandatory independent access to funded counselling and peer support.

 

Article 16: Current forms of oversight of medical interventions affecting people born with variations of sex characteristics have proven to be inadequate.

a. We note a lack of transparency about diverse standards of care and practices across Australia and New Zealand for all age groups.

b. We note that the Family Court system in Australia has failed to adequately consider the human rights and autonomy of children born with variations of sex characteristics, and the repercussions of medical interventions on individuals and their families. The role of the Family Court is itself unclear. Distinctions between ‘therapeutic’ and ‘non-therapeutic’ interventions have failed our population.

 

Article 22: We call for the provision of alternative, independent, effective human rights-based oversight mechanism(s) to determine individual cases involving persons born with intersex variations who are unable to consent to treatment, bringing together human rights experts, clinicians and intersex-led community organisations. The pros and cons for and against medical treatment must be properly ventilated and considered, including the lifetime health, legal, ethical, sexual and human rights implications.

 

Article 23: Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives [emphasis in original].

 

I also endorse the 7 May 2018 submission by Intersex Human Rights Australia to the Review of the Family Law System – Issues Paper.

 

This includes supporting their analysis of the serious problems caused by the jurisprudence of the Family Court to date in this area (on pages 33 to 42), specifically:

 

  • Welfare of a Child A (1993)
  • Re: Carla (Medical procedure) (2016)
  • Re: Lesley (Special Medical Procedure) (2008), and
  • Re: Kaitlin (2017).

 

The horrific circumstances of the Re: Carla case in particular demonstrate the acute failure of the Family Court to adequately protect the human rights of children born with intersex variations. Instead, the Family Court appears more likely to be complicit in, and sign off on, these same human rights violations.

 

It is hard not to agree with IHRA’s conclusion that: ‘this 2016 Family Court of Australia case is deeply disturbing, exemplifying the way that the human rights of intersex children are violated with inadequate evidence for social and cosmetic purposes’ (page 39).

 

I further endorse the summary findings of the IHRA submission (on page 42) including that:

 

  • The Family Court system has not understood the intersex population, nor the nature of procedures in cases that it has been asked to adjudicate. Most cases are not subject to even this limited form of oversight.
  • The Family Court has failed to properly utilise its procedures in order to ensure that the best interests of intersex children have been thoroughly investigated and understood within the medical context, and within the human rights context, and
  • The ‘best interests of the child’ has been interpreted through a narrow lens, manipulated to facilitate experimental treatments that, contrary to Article 3 of the Convention on the Rights of the Child, conflict with the child’s human dignity and right to physical integrity. This has been facilitated through appeals to gender stereotypes and social norms with insufficient attention to the long-term health and well-being interests of the child.

 

And I support the recommendations made by IHRA on pages 43 and 44, including that:

 

Recommendation 4. Any non-deferrable interventions which alter the sex characteristics of infants and children proposed to be performed before a child is able to consent on their own behalf should be identified as medical treatment outside the scope of parental consent and requiring authorisation of an independent body (hereafter referred to as the ‘decision-making forum’). A decision-making forum must bring together human rights experts, clinicians, and intersex-led community organisations.

 

Recommendation 5. Whether consent is provided by the intersex minor or a decision-making forum, the pros and cons of medical treatment must be properly ventilated and considered, including the lifelong health, legal, ethical, sexual and human rights implications. Consent or authorisation for treatment must be premised on provision of all the available medical evidence on necessity, timing, and evaluation of outcome of medical interventions. Where this is no clinical consensus, this must be disclosed.

 

Recommendation 10. The current threshold criteria to determine whether or not a procedure is within the scope of parental authority is whether it is therapeutic or non-therapeutic. This criterion has failed to distinguish between interventions that are strictly clinically necessary and those that are not; between interventions based on culturally-specific social norms and gender stereotypes and those that are not. This criterion should be abandoned as a threshold test of whether a medical procedure requires oversight or authorisation from a decision-making forum, and

 

Recommendation 11. Children born with variations of sex characteristics must be treated by multi-disciplinary teams. Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives.

 

Based on all of the above factors, and returning to Question 9-1 in the Discussion Paper, my approach to these issues is therefore:

 

  • All deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children with variations in sex characteristics without personal consent should be prohibited as criminal acts.
  • Where medical interventions on infants and children with variations in sex characteristics are considered non-deferrable, this must be subject to genuine independent oversight.
  • Based on the advice of Intersex Human Rights Australia, the experiences of far too many people born with intersex variations, and the jurisprudence cited earlier, adequate oversight is not being provided currently. The Family Court has failed, in its welfare jurisdiction, to protect the welfare of intersex infants and children.
  • Given this, the Family Court should no longer perform this function. Instead, a new independent authority should be created to oversee issues related to non-deferrable medical interventions on infants and children with variations in sex characteristics.
  • This new independent authority should primarily be guided by human rights considerations, including the human rights of the child concerned – rather than the current approach which both prioritises and privileges a medicalised approach to these questions.
  • Consequently, this new independent authority should receive evidence and information from human rights and children’s rights experts, from intersex-led community organisations and peers, alongside clinical and psychosocial experts. Only by hearing from all of these sources can the issues be properly ventilated.
  • This new independent authority should be national, both so that it can help ensure greater consistency, but also to assist with the transparency of and accountability for its decision-making.

 

Thank you for the opportunity to provide this submission to this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely,

Alastair Lawrie

1200px-Intersex_flag.svg