I realised I was same-gender attracted on my first day at a religious boarding school in Brisbane in the 1990s. It was terrible timing, and meant my high school experience there was a living hell.
This was a school that was proud to publish its homophobia in its school rules – homosexuality would not be tolerated because it was not in accordance with god’s will.
It was abundantly clear that ‘coming out’ as gay was simply not an option. To do so would likely be met with punishment. And so I didn’t.
At its worst, I vividly recall a school pastor giving a sermon to a chapel full of 600-or-so year 11 and 12 students, talking about how a child from his former parish had come to see him ‘struggling with confusion’ about who he was. He said the child ultimately committed suicide – before observing this was not the worst thing he could have done.
For many queer kids sitting there that day, like me, the sermon’s underlying message was obvious: much better to be dead than gay.
The school’s overall approach to LGBTQ issues oscillated between that kind of explicit prejudice on one hand, and silence and invisibility on the other (including failing to provide any relevant sex education, which was particularly dangerous at a time when HIV/AIDS was still killing thousands).
Looking back, I think this ‘invisibilisation’ was actually more detrimental in terms of its impact on me, because it meant suffering in silence, completely alone, with the people who were supposed to be looking after me offering no solace.
The climate created by the school’s silence on sexual orientation and gender identity also allowed anti-LGBTQ bigotry to flourish amongst its students.
While I cannot be certain homophobia was a conscious motivator in the multiple physical assaults I experienced in Year 11 (which went unpunished by the school), the fact I was ‘different’ in some fundamental way, left cowered by fear into being withdrawn and isolated, rendered me vulnerable.
I can be more confident homophobia was behind the choice by Year 11 students to bestow on me the ‘Big fat poof’ award at the end of Year 12, in front of both peers and boarding school staff, with the latter doing nothing to respond to it.
Not even to check if I was okay.
That was almost three decades ago, so why I am writing about it now?
Because, with Commonwealth Parliament yet again debating the issue of protections for LGBTQ students and teachers – and yet again looking like letting the LGBTQ community down – there’s two points I want people, and especially politicians, to know.
First, that religious school homophobia, biphobia and transphobia causes serious harm. For me, that meant thinking about committing suicide every single day from the start of Term 2 in Year 8, until the final term of Year 12. Sometimes upwards of twenty times a day.
That is no way for a child to live. And definitely no way to learn, or to grow.
Nor does it suddenly end when the students who are the victims of this prejudice leave the school gates for the final time.
Trust me, I know. Those terrible five years have impacted me for much, much longer than that again.
The hurt and the harm I suffered was a major contributing factor to the lost decade that was my twenties, culminating in my thankfully unsuccessful attempt at suicide around my 29th birthday, more than a decade post-school.
Life got better when I met partner just after I turned 30, but I am not ashamed to admit that even now the trauma from my schooling is something I have discussed with my psychologist multiple times over the past 12 months.
And so, if the Labor Government chooses to break their clear election promise to protect LGBTQ students in religious schools, it won’t just be a betrayal of the students currently enrolled in homophobic, biphobic and transphobic schools – who, as highlighted by Equality Australia’s ‘Dismissed, Denied and Demeaned’ report released on Monday, continue to be vulnerable now.
It will be a betrayal of their futures too, with the impacts continuing to be felt in the 2030s, 40s and 50s.
Second, while it may not initially seem like it, my story is one of hope.
Because those experiences were in Queensland – a state which legislated to protect LGBTQ students in religious schools against discrimination two decades ago, and which is currently consulting on promised reforms to protect LGBTQ teachers too.
Far from causing religious schools to cease to exist, as baseless scare-mongering by groups like Christian Schools Australia assert, the main outcome has simply been that LGBTQ students can finally learn and grow safe from discrimination on the basis of who they are.
And, I’m reliably informed by people whom I trust, that includes at the school I went to. Change is possible.
Sadly, that still has not happened everywhere, with religious schools legally free to discriminate against LGBTQ students under Commonwealth law, and in NSW, WA and SA too.
Commonwealth Parliament can rectify this by immediately implementing the straight-forward recommendations of the ALRC report. If they do, they would be choosing to bestow a brighter future on LGBTQ students right across Australia.
*****
For LGBTIQ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/resources/chat
Or contact Lifeline Australia on 13 11 14.
Five years at a homophobic religious boarding school caused decades of harm.
*****
For an extended account of my experiences at that homophobic and harmful religious boarding school, you can read the following:
Finally, if you have appreciated reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
[I wrote this piece about 10 days ago, in the lead-up to the anniversary of the horrific events at Victorian Parliament in March last year. Unfortunately, it wasn’t picked up by media outlets – but the past week has made these comments even more urgent, so I am publishing it here.]
One year ago last Monday (on Saturday 18 March 2023), Australians witnessed the horrific sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament, holding a banner saying ‘destroy paedo freaks’ and performing Nazi salutes.
It was a chilling reminder of the serious threat posed by right-wing extremism to LGBTIQ communities in general, and trans and gender diverse people in particular.
Rather than being a one-off, that awful anti-LGBTIQ spectacle was just the first in a long line of rallies and related hate speech threatening our communities over the past 12 months.
Within days, so-called ‘Christian Lives Matter’ members engaged in what can only be described as a riot against peaceful LGBTIQ protestors (and NSW Police) in the Sydney suburb of Belfield.
April onwards saw a dramatic rise in threats of violence and intimidation by right-wing extremists across the country, directed to local councils and libraries holding Drag Story Times.
Most recently, the ABC was forced to cancel a Drag Story Time that was to be held in conjunction with the Sydney Gay & Lesbian Mardi Gras following death threats against their employees.
The attacks on our communities have been terrifying. They have been relentless. And they are part of a disturbing international trend of intolerance.
But where has the Commonwealth Government been when we have needed their leadership?
They were quick to introduce legislation to ban the display of Nazi hate symbols, later amended to also prohibit the Nazi salute. This was welcome, but addresses only part of the problem.
A group of thugs intimidating trans people with a banner saying ‘destroy paedo freaks’ is a serious issue irrespective of what clothes they wear, flags they fly or salutes they perform.
Sadly, though, we have not seen the Albanese Government respond to the rise in anti-LGBTIQ right-wing extremism with the seriousness it deserves.
We have not seen or heard clear and consistent condemnation of growing homophobia, biphobia and transphobia, or even of the violent threats against community events.
There has been no commitment to introduce much-needed Commonwealth laws prohibiting anti-LGBTIQ vilification.
And no open engagement with LGBTIQ communities about the threats we face, or additional funds committed to help with our safety.
Instead, it has been left to unfunded groups like Rainbow Community Angels, who attempt to make events like Drag Story Time a safe place for attendees, to stand up against the far-right, unassisted.
It’s possible the Government would say that primary responsibility for these issues lies with states and territories, but these are problems that call for national leadership.
By contrast, faith communities have been actively engaged and largely supported when they have raised concerns about intolerance.
Government representatives, from Prime Minister Albanese down, have spoken up in recent months against religious hate speech, particularly in the form of anti-semitism. The Government has made repeated promises to introduce religious vilification laws, expected to be tabled within weeks.
[NB Since this piece was written, the Government has confirmed it is pushing ahead with these amendments, separate to the Religious Discrimination Bill and any Sex Discrimination Act changes, meaning it may be the only part of those overall reforms that actually pass.]
And $40 million in Commonwealth funding for the safety of religious organisations was announced by Attorney-General Mark Dreyfus last May (on the International Day Against Homophobia, Biphobia and Transphobia no less).
The LGBTIQ community can’t even convince the Government to create and appoint a stand-alone LGBTIQ+ Discrimination Commissioner at the Australian Human Rights Commission. LGBTIQ issues remain a part-time, ad hoc responsibility of the Sex Discrimination Commissioner.
Promises to address anti-LGBTIQ vilification, and funding for LGBTIQ community safety, remain nowhere to be seen.
I’m a 45-year old cis gay man. I grew up in Joh Bjelke-Petersen’s Queensland, and survived five years at a deeply homophobic religious boarding school. Coming out of, and coming out after, that environment was tough.
But the rise in overt, targeted, public bigotry over the past 12 months has left me feeling less safe than at any time since the 1990s.
What has made things worse is the silence and inaction of the Albanese Government. This has left me, and many others in our community, feeling forgotten too.
Source: Herald Sun.
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/X @alawriedejesus
Thank you for the opportunity to provide this submission in response to the Draft National Care and Support Strategy 2023.
I do so as a long-standing advocate for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians, with a particular focus on ensuring our communities are legally protected and can live our lives free from discrimination on the basis of who we are.
At the outset, I would like to commend the Government for taking on the issue of ensuring the ‘care and support economy’ is working effectively and efficiently for the benefit of all people, including the people accessing these services as well as the workers providing them.
As noted in the draft strategy as circulated, this is especially important given ‘Australian Government spending in these sectors is projected to rise from around $60bn in 2021-22 to more than $110bn by 2026-27.’
In this context, however, it is disappointing that so little consideration is given to how the care and support economy impacts LGBTIQ people.
Indeed, as far as I can tell, there is only one reference to LGBTIQ people in the entire 56 pages of the proposed strategy (which I will address in more detail below).
Almost inevitably, this means that the impact of the care and support economy on LGBTIQ people accessing services, and LGBTIQ workers – as well as the inter-relationship between these two cohorts – is not adequately addressed.
I therefore call for the following issues to be addressed in more detail in the final version of the strategy to be released later this year.
Better protections for LGBTQ people accessing care and support services
While increased Government funding for care and support services overall is obviously welcome, one particular aspect of this funding which causes potential problems for the LGBTIQ community is that a significant share is provided to religious organisations to operate what are essential public services.
Although many religious organisations are now accepting of LGBTQ people and our families, many others remain discriminatory in their approaches towards diversity in sexual orientation and gender identity.
And in at least some of these cases, although thankfully not all, this discrimination is legally permitted under the Commonwealth Sex Discrimination Act1984.
First, on the positive side, the 2013 amendments to this legislation, which protected LGBTI people against discrimination under federal law for the first time, included a ‘carve-out’ which provides that Commonwealth-funded age care services operated by religious organisations are not permitted to discriminate against LGBTQ people accessing those services (sub-section 37(2)(a): ‘Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’)
While welcome, this carve-out is also extremely narrow. It does not protect LGBTQ people accessing non-Commonwealth Government funded aged care services against discrimination because of their sexual orientation and/or gender identity.
Even worse, the fact this carve-out only applies to aged care, means that other parts of the care and support economy – from disability services, through veterans’ care and early childhood education and care – are not covered.
In other words, religious organisations which operate services in these sectors are free to discriminate against LGBTQ people accessing them, even where the service is being provided with Australian Government money. With taxpayers’ money. With our money.
This is completely unacceptable in 2023. People should be able to access these services – disability services, veterans’ care and early childhood education and care – without having to fear such discrimination.
It is also completely contradictory to the otherwise-worthy stated objectives of the Draft Strategy.
This includes 1.4 ‘Services are culturally and psychologically safe for all people.’ Supported by the discussion on page 19 – which is the only place LGBTIQ people are explicitly mentioned in the document: ‘In addition to formal qualifications, the increasingly diverse Australian population also requires a workforce that is culturally competent for First Nations people, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.’
Services cannot be culturally and psychologically safe for all people if some services are granted special privileges to discriminate against LGBTQ people accessing them.
And aiming for a workforce that is culturally competent to engage with LGBTI people is undermined if those services are permitted to refuse to engage with LGBTQ people anyway.
Therefore, if the Draft Strategy is to meet its stated objectives it must also include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ people accessing disability services, veterans’ care and early childhood education and care.
2. Better protections for LGBTQ workers providing services
The need to improve legal protections for LGBTQ people under the Sex Discrimination Act doesn’t just apply to the people accessing those services – but also extends to the workers providing them.
This is especially important when, as noted in the draft Strategy, ‘The health care and social assistance industry now accounts for 15 per cent of Australia’s workforce, making it the largest employing industry in Australia’ and that ‘The care and support workforce is growing 3 times faster than other sectors in the Australian economy.’
Being able to enjoy safe and secure jobs, and ultimately careers, is therefore important for all cohorts within the Australian community – but this is something currently denied to too many LGBTQ workers.
That is because religious organisations receiving Commonwealth, State and Territory funding to deliver these services are legally permitted under federal anti-discrimination law to discriminate against workers simply based on their sexual orientation and/or gender identity.
Unlike LGBTQ people accessing aged care services, this includes LGBTQ workers in those services – sub-section 37(2)(d) makes it clear that the ‘carve-out’ does not apply where ‘the act or practice is… connected with the employment of persons to provide that aged care.’
There is also no Commonwealth protection for LGBTQ workers delivering disability services, veterans’ care or early childhood education and care, where their employers are faith bodies.
This is unacceptable. Workers should be hired, fired, promoted or otherwise engaged or not engaged on the basis of their ability to deliver this vital ‘care and support’ – not on their sexual orientation and/or gender identity.
This obviously has direct negative impacts on the LGBTQ workers involved – and potential workers too, who may be dissuaded from entering the care and support workforce to begin with if they are aware large sections of these industries are legally empowered to mistreat them just because of who they are.
But it also undermines the stated objectives of the draft strategy, including:
2.4 ‘Workplaces are safe and healthy, and psychological and physical risks are eliminated or, if this is not possible, minimised’ and
2.6 ‘Workplaces are inclusive of diverse cultures, genders, ages and abilities and are culturally safe for all workers, including First Nations workers.’
Psychological risks for LGBTQ workers are not being eliminated or minimised however long religious organisations in the care and support economy are legally permitted to discriminate against them.
And workplaces can never be ‘culturally safe for all workers’ while this situation prevails too.
If the Government is serious about achieving both of those objectives, then it must include a recommendation, and commitment, to remove the exceptions in the Sex Discrimination Act that currently allow religious organisations to discriminate against LGBTQ workers providing aged care, disability services, veterans’ care and early childhood education and care.
3. Better protections for LGBTQ workers will lead to better services for all people, including LGBTQ people, accessing these services
It should be noted that, as well as benefitting individual LGBTQ workers, removing the ability of religious organisations in this sector to discriminate against LGBTQ workers will also deliver a higher quality of care – which is something all Australians have an interest in.
The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.
This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants, for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.
This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.
And this impact will likely exist for as long as the general exception in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.
Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.
There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.
People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.
The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.
Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.
LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.
There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.
LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).
Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.
The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.
Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.
For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).
However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.
Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.
In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.
There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.
Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.
*****
The same or similar arguments can be made with respect to LGBTQ workers providing other services in the care and support economy.
If we care about the care and support economy, if we care about the people working in it, and above all the people accessing the services within it, then the special privileges which allow religious organisations to discriminate against LGBTQ people must be repealed.
Sadly, not a lot has changed since I wrote that Aged Care Royal Commission submission more than four years ago. Perhaps the only two developments to note are a) even more money seems to be going to these sectors (and therefore to faith-based organisations providing these services), and b) the change to the Commonwealth Government in May 2022.
The previous Morrison Liberal/National Government was clearly uninterested in protecting LGBTQ people accessing services, and LGBTQ workers (indeed, with their thankfully abandoned Religious Discrimination Bill, they potentially sought to increase discrimination against both groups).
The questions now are for the Albanese Labor Government:
How serious are you about ensuring care and support economy services are ‘culturally and psychologically safe for all people’, including LGBTQ people?
What priority do you give to eliminating as far as possible psychological risks to workers, and ensuring workplaces are ‘culturally safe for all workers’, including LGBTQ workers?
Because if you’re serious about this, if it’s a priority to you, then the final version of the National Care and Support Economy Strategy 2023 must include recommendations, and commitments, to remove the special privileges under the Sex Discrimination Act 1984 (Cth) which allow religious organisations to discriminate against people on the basis of their sexual orientation and/or gender identity.
Thank you in advance for taking the issues raised in this submission into consideration as the National Care and Support Strategy is finalised. Please do not hesitate to contact me, at the details provided, should you require more information.
Commonwealth Parliament passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ten years ago today.
This was historic legislation, finally offering federal anti-discrimination protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.[i]
And it was long overdue, more than 30 years after NSW became the first jurisdiction in Australia to prohibit discrimination on the basis of homosexuality, way back in 1982.
But, even at the time of passage it was clear these Sex Discrimination Act amendments were incomplete, and their limitations have only become more apparent in the decade since.
Here then are some[ii] of the key short-comings which need to be addressed in order for the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 to live up to its potential.
Replace the protected attribute of intersex status with sex characteristics
The 2013 amendments meant Australia became one of the first jurisdictions in the world to offer anti-discrimination protections to intersex people. It did so by the inclusion of ‘intersex status’ as a protected attribute, defined as:
‘the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.’
This terminology (intersex status) and associated definition are no longer considered best practice, with peak body Intersex Human Rights Australia advocating for its replacement with ‘sex characteristics’, which was recently defined in amendments to the Queensland Anti-Discrimination Act 1991 in the following way:
‘sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes-
(a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and
(c) the person’s secondary physical features emerging as a result of puberty.’
Fortunately, the Commonwealth Government has actually committed to making this change – Industrial Relations Minister Tony Burke promised to replace intersex status with sex characteristics in Parliament in November 2022.[iii]It’s time for the Albanese Government to follow through on this commitment.
2. Protect LGBTQ students in religious schools against discrimination
It is appalling that, in 2023, Commonwealth anti-discrimination laws – which are supposed to protect LGBTI Australians – instead continue to allow religious schools and colleges to discriminate against some of the most vulnerable among us.
The special privileges permitting religious schools to mistreat LGBTQ young people in myriad ways (from refusing to enrol, through to suspension, expulsion and other forms of punishment, as well as an almost unlimited variety of differential treatment to their cis-het counterparts) were never justified. But they look especially archaic, and abhorrent, today.
All students have the right to education, and must be allowed to exercise this right in safety. And because any student, in any school, can be LGBTQ, all schools must be LGBTI-inclusive.
Once again, the Albanese Government has promised to protect LGBTQ students against discrimination. However, rather than simply following the precedents of multiple states and territories which have already legislated to protect LGBTQ kids – some for more than two decades – they chose to refer the issue of the exceptions enjoyed by religious schools to the Australian Law Reform Commission in November 2022 for a six-month inquiry.
Disappointingly, in April 2023, Attorney-General Mark Dreyfus announced that this inquiry was being extended until 31 December 2023. As a result, LGBTQ Year 12 students in 2023 will not be protected against discrimination before they leave school (despite both major parties promising to do so since October 2018, when they were only in Year 7). And another class will likely start, in 2024, still not protected against discrimination on the basis of who they are.
This simply isn’t good enough.
3. Protect LGBTQ teachers in religious schools against discrimination
Of course, LGBTQ students are not the only people in religious schools and colleges who deserve protection against mistreatment. So too do LGBTQ teachers and other workers.
Teachers should be judged simply according to their ability to teach – not their sexual orientation and/or gender identity.
This would not only benefit LGBTQ teachers, who would finally enjoy the same ability to apply for jobs, and promotions, across their industry as cis-het teachers, and would also be free to focus on teaching rather than having to hide in the closet and spend time and emotional energy worrying about whether they will be outed, and sacked as a result.
But it would benefit students too, who would be taught by the best person for the job (not the best cis-het person), and learn from LGBTQ teachers not distracted by the ever-present threat of discrimination. For LGBTQ students, out teachers also offer the prospect of role modelling what a happy life might look like, reducing their potential isolation.
The imperative to remove the ability of religious schools to discriminate against teachers on the basis of their sexual orientation and/or gender identity is only strengthened when we consider the massive sums of taxpayer money – ourmoney – given to these institutions.
Yet again, the Albanese Government has promised to remove the special privileges which allow religious schools to discriminate against LGBTQ workers. But, as with LGBTQ students, the possible protection of LGBTQ teachers has been held up by the lengthy extension to the ALRC inquiry.
LGBTQ teachers shouldn’t have to wait until 2024, or beyond, to enjoy protection against discrimination in the workplace. They should be allowed to focus on lesson plans and marking, not planning how to mask their sexual orientation or gender identity.
4. Protect LGBTQ workers in Government-funded aged care services operated by religious organisations
One of the best provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) was new sub-section 37(2)(a) which states that the Act’s general religious exception (contained in sub-section 37(1)(d):
‘does not apply to an act or practice of a body established for religious purposes if… the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care.’
In effect, nearly all aged care services across Australia are now prohibited from discriminating against people accessing those services on the basis of their sexual orientation and/or gender identity. In other words, LGBTQ people in all Government-funded aged care services are legally protected against discrimination.
The fact this provision has operated successfully, for a decade, demonstrates that special privileges allowing discrimination by religious organisations delivering what are essentially public services are unnecessary, and should be removed.
We should start by repealing sub-section 37(2)(b),[iv] which still allows faith-based aged care services to discriminate against LGBTQ workers.
All of the arguments which applied to LGBTQ teachers in religious schools, outlined above, also apply to LGBTQ aged care workers. This includes ensuring that the best person for the job is hired, not just the best cis-het person, allowing LGBTQ aged care workers to focus on the important task of delivering care to the elderly rather than worrying about being discovered, and allowing LGBTQ people accessing aged care to see openly-LGBTQ people looking after them.
5. Remove the general religious exception in section 37(1)(d) of the Sex Discrimination Act entirely
The same arguments which apply to LGBTQ students, teachers and aged care workers, also apply to LGBTQ people accessing services and employees across a broad range of other public services – such as disability, health, housing and other community services – which have been increasingly outsourced by state, territory and commonwealth governments over recent years.
All people accessing these services should be free to do so without having to fear discrimination on the basis of their sexual orientation and/or gender identity.
All workers in these industries should have the right to be judged on their ability to perform their role, not on who they are or how they identify.
Several Australian states and territories have already reformed their anti-discrimination laws to narrow their general religious exceptions along these lines, including Tasmania, Victoria, the ACT and NT, while Queensland and Western Australia have in-principle commitments to implement law reform recommendations achieving the same.[v] It’s time for Commonwealth Parliament to catch up.
Importantly, even if the general religious exception in sub-section 37(1)(d) of the Sex Discrimination Act 1984 (Cth) were removed, religious organisations would continue to enjoy the right to religious freedom through sub-sections (a), (b) and (c), which cover the training and appointment of ministers of religion, and selection of other people to perform functions in connection with religious observances or practices.
6. Prohibit vilification against LGBTI Australians
One major gap which exists in the Sex Discrimination Act, and which unfortunately was not addressed by the historic 2013 amendments, is a lack of Commonwealth prohibition on vilification on the grounds of sexual orientation, gender identity and sex characteristics.
The first half of 2023 has comprehensively demonstrated why such nation-wide prohibitions are essential, with TERFs and neo-Nazis rallying against trans rights on the steps of Victorian Parliament, the Christian Lives Matter riot against LGBTIQ protestors in Sydney, and growing threats of violence and intimidation against drag story time and other local LGBTIQ community events across several jurisdictions.
Disappointingly, there has so far been no national response to the anti-LGBTI substance of these developments.
The Albanese Government has instead proposed legislation banning the display of Nazi symbols which, while obviously welcome, in the absence of LGBTI vilification laws raises the following question: is anti-LGBTI hate speech acceptable as long as the people engaging in it aren’t wearing Nazi uniforms?
What has been happening so far this year is nothing short of a national crisis. What we need is a national response, including the introduction of Sex Discrimination Amendments prohibiting vilification against LGBTI Australians, equivalent to section 18C of the Racial Discrimination Act 1975 (Cth).
7. Create and appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics
The dire situation confronting LGBTI Australians in 2023 has highlighted another structural weakness in our anti-discrimination framework – the lack of a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.
This absence puts LGBTI people at a distinct disadvantage compared to other groups for which dedicated Commissioners have been created, including:
Race
Sex
Disability
Age
Children
Aboriginal and Torres Strait Islander Social Justice, and
Human Rights.
Responsibility for LGBTI issues has instead been seen as an ‘add-on’, with the portfolio at various times being held by the Human Rights Commissioner, Sex Discrimination Commissioner and even the President (where it currently sits, although it will likely revert to the Sex Discrimination Commissioner when a replacement for Kate Jenkins is appointed).
But as an ‘add-on’, it never receives the same level of attention as other portfolios, nor the same amounts of funding and resources.
This lower relative prioritisation of LGBTI rights can be seen in the Commission’s muted response to the disturbing developments in the first half of 2023 – as far as I can tell, there have been no media releases or other public policy contributions in response to the TERF and neo-Nazi rally, Christian Lives Matter riot, or escalating wave of anti-LGBTI threats around the country.
Our community is under attack, and Australia’s national human rights institution does not appear to be coming to our defence.
The most straight-forward way to remedy this would be to address the structural weakness which has contributed to it – and that is by creating, and urgently appointing, a stand-alone independent Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the AHRC.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.
Commonwealth Attorney-General Mark Dreyfus, who has responsibility for the Sex Discrimination Act 1984 (Cth), and who therefore has responsibility for amending it to better protect LGBTI Australians.
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Footnotes:
[i] Although the Commonwealth Fair Work Act had offered limited protections to LGB workers, on the basis of ‘sexual preference’, from 2009.
[ii] This is by no means an exhaustive list of the Act’s faults. Other issues which should be addressed include narrowing the exceptions applying to transgender and intersex people in sport, as well as removing the exceptions relating to data collection.
[iii] During debate on legislation that finally included gender identity and intersex status as protected attributes in the Fair Work Act for the purposes of adverse action and unlawful termination provisions.
[iv] Which clarifies that the protection of LGBTQ people in relation to aged care services operated by faith bodies only applies where ‘the act or practice is not connected with the employment of persons to provide that aged care.’
[v] From the Queensland Human Rights Commission and WA Law Reform Commission respectively.
Today marks the one-year anniversary of the election of the federal Albanese Labor Government. Looking back on those first 12 months, there have been some small but important wins, and some disappointing losses. But above all, there has been plenty of unfinished – and in many cases, un-started – business.
First, to the wins. In November last year, as part of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 reforms, the Government added gender identity and intersex status as protected attributes in relation to the Fair Work Act’s adverse action and unlawful termination provisions. These amendments ensured trans, gender diverse and intersex workers were explicitly included in this law for the first time (although the Government still needs to update the out-dated terminology of intersex status, replacing it with sex characteristics, something Employment and Workplace Relations Minister Tony Burke has thankfully committed to do).
The second set of wins were the announcements from the Government which coincided with Sydney World Pride earlier this year, including:
Development of a 10 Year National Action Plan for the Health and Wellbeing of LGBTIQA+ Australians,
$26 million in grants for research projects seeking to improve the treatment and care of LGBTIQA+ people, through the Medical Research Future Fund, and
A new inclusion and equality fund to support LGBTIQ human rights in the Asia-Pacific region, with initial funding of $3.5 million.
On the other hand, the second half of 2022 saw some disappointing losses. This includes the decision by the Government to reject Greens amendments, supported by the cross-bench, to create an LGBTIQA+ Discrimination Commissioner at the Australian Human Rights Commission. Even if the Government believed the Bill being amended at the time (which related to the method of appointment for Commissioners) was the wrong vehicle for these amendments (which is the excuse they used), they have still not committed to introducing their own legislation to establish this stand-alone independent national voice on LGBTIQA+ rights which, based on recent events, is more needed than ever.
Another disappointing loss was the complete exclusion of LGBTIQ groups, and issues, from one of the major set-pieces of the first year of the Albanese Government: the Jobs and Skills Summit. Not only were LGBTIQ organisations not invited to attend the Summit itself, the Government also did not hold any specific consultations with LGBTIQ groups in the lead-up to it (out of more than 100 it conducted). It is therefore no surprise that the outcomes document from the Summit did not address any specific LGBTIQ issues – at a time when many cohorts within the LGBTIQ community experience significant workplace discrimination and exclusion (especially trans and gender diverse workers).
The above wins and losses could, in some respects, be seen as a decidedly mixed scorecard. Instead, I see it as a fundamentally incomplete one – after all, the issues identified are a long way from a comprehensive LGBTIQ agenda. There are many, many more priorities that the Government has not reached an outcome on – including plenty that haven’t even commenced.
Take, for example, one of the few explicit LGBTIQ commitments the Albanese Government took to the May 2022 election: to protect LGBTQ students and teachers in religious schools against discrimination.
In November 2022, Attorney-General Mark Dreyfus asked the Australian Law Reform Commission to undertake an inquiry on this topic, with a deadline of 21 April 2023. Except, the day before the final report of that review was due to be handed to the Government, the ALRC was given an 8-month extension to 31 December. There is really no need for such an extension – especially when this law reform itself is actually quite straight-forward (after all, Tasmania, the ACT, Victoria and NT all already protect both LGBTQ students and teachers).
The outcome of this process is that it is highly unlikely LGBTQ students and teachers will be protected this year, with any amendments not taking effect until well into 2024. As I wrote at the time of this delay in The Canberra Times, it is example of the ways in which the LGBTQ class of 2023 has been comprehensively failed, by Governments of both persuasions.
On a related note, the Government has not made any commitments to remove broader religious exceptions, found in both the Sex Discrimination Act 1984 and Fair Work Act, which allow religious organisations to discriminate against LGBTQ workers, and people accessing services, across health, housing, disability, aged care and other welfare and community services. The majority of these services are funded by us, the taxpayer, including in aged care – meaning the large increases in aged care funding in the recent federal Budget are going to organisations that can use that money to discriminate against LGBTQ workers.
There are a range of other important LGBTIQ policy areas where the Government has not yet taken concrete action, including:
Inclusion in the 2026 Census. While the Australian Bureau of Statistics has started consultation on the questions which should be included in the next Census, the Government has not given an unequivocal promise that questions on sexual orientation, gender identity and sex characteristics will be included. Such questions are necessary to help deliver essential services to our communities – after all, if we are not counted, we do not count.
Medicare funding for gender-affirming health care. Far too many trans and gender diverse Australians still cannot afford what are vital, and in many cases life-saving, health services. Gender-affirming health services should be publicly-funded via Medicare, removing out-of-pocket costs for this community.
Ending non-consenting surgeries on intersex kids. With the ACT Government soon to pass historic legislation banning many non-consenting surgeries and other medical interventions on children born with variations of sex characteristics (the first jurisdiction in Australia to do so), I am unaware of any Commonwealth Government actions to help ensure intersex kids are protected around the country.
Re-introduction of Safe Schools. The Albanese Government continues to fund the National School Chaplaincy Program to the tune of more than $60 million per year (and even though they have formally removed the requirement that these office-holders must be appointed on the basis of religion, the vast majority still are). In contrast, the Government has had two Budgets to date but is yet to find any money to re-introduce what was an effective, and necessary, program against anti-LGBTIQ bullying in schools.
LGBTIQ policy infrastructure. In addition to an LGBTIQA+ Human Rights Commissioner at the AHRC, there is a clear need for a Minister for LGBTIQ Communities, as well as formal consultative bodies in the Department of Prime Minister and Cabinet, as well as portfolios like Health, Education and Attorney-General’s. Currently, none of these exist.
Even on more symbolic matters, the Government’s record is mixed. While in late February Anthony Albanese became the first Prime Minister to march in the Mardi Gras Parade, and also participated in the World Pride March over Sydney Harbour Bridge in early March, these efforts at visible (some might say performative) inclusivity are undone by his apparent aversion to even saying the word transgender, let alone doing the bare minimum to publicly combat the growing culture war against trans and gender diverse Australians.
Speaking of which, it certainly feels like the Government is missing in action as the LGBTIQ community comes under increasing attacks, and even threats of violence, including the TERF and neo-Nazi rally on the steps of Victorian Parliament, the Christian Lives Matter riot in Belfield in Sydney, and the wave of intimidation against Drag Story Time events in Victoria and now elsewhere around Australia.
Local Councils have been left on their own to deal with what is a growing national crisis of far-right extremism, in a way that may not have happened if the targets had been from other communities. This is perhaps illustrated by the Attorney-General’s ill-timed announcement this week of $40 million in ‘Securing Faith-Based Places’ grants, to protect religious schools and places of worship against violence and discrimination.
Without debating the merits of this scheme – and I obviously agree people should be free to worship in safety – it was a mistake to announce this on IDAHOBIT, certainly without providing equivalent funding for LGBTIQ community security against similar (and in some cases, probably the same) extremists. Nor has the Government made any promises to introduce Commonwealth anti-vilification protections for LGBTIQ Australians, despite committing to prohibit religious vilification.
The Albanese Government still enjoys a large amount of public goodwill, including from many LGBTIQ people – at least partly due to the fact it is not the Morrison Liberal/National Government, a dreadful period during which our community came under relentless and sustained attack.
However, simply not being Scott Morrison is not enough as the Albanese Government enters its second year in office. From an LGBTIQ community perspective, they clearly need to do better, and do more, on the issues which affect us.
Oh, and one final thing. I raise the spectre of Scott Morrison here quite deliberately (despite the risk of PTSD, including my own). Because the coming 12 months is also likely to see the Albanese Government introduce its own Religious Discrimination Bill.
As a community we will need to be on high-alert to ensure this legislation protects people of faith against discrimination on the same basis as existing anti-discrimination laws, without permitting lawful discrimination against others, including LGBTIQ Australians. If it does include anti-LGBTIQ provisions, the Government should be in no doubt we will fight against its law just as hard as we fought against Morrison’s Bill.
Anthony Albanese on election night, 21 May 2022.
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This is the second in a two-part series of articles reflecting on the recent federal election and its impact on LGBTIQ Australians, with this post focusing on what it means for the upcoming Parliamentary term. You can read the first post, looking back on the past three years, ‘The worst of times’, here.
The same thing could just as easily be written now after the federal election on May 21 which saw the Morrison Liberal/National Government defeated.
Yes, this outcome is a massive relief for LGBTIQ Australians, who, as I wrote last weekend, have just endured the worst Commonwealth Parliamentary term for our rights in my lifetime.
And it obviously means the threats of the Coalition’s damaging and divisive Religious Discrimination Bill (or ‘Religious Freedom Bill’ in disguise), and Liberal Senator Claire Chandler’s legislation attacking trans women and girls’ participation in sport, have receded (for now).
But, just like in NSW, not going backwards on LGBTIQ rights is not the same thing as going forwards: the many changes to Commonwealth laws and policies to make our lives better which were needed on May 20 were not somehow magically introduced on May 22.
Progress still needs to be delivered. In many, many areas.
I wrote about some of those LGBTIQ law reform priorities earlier this year, here.
But perhaps a better and more comprehensive outline of what needs to happen is found in the Just.Equal Australia pre-election survey of the LGBTIQ community and its priorities, which included (but was definitely not limited to):
Removing current exemptions in the Sex Discrimination Act that allow discrimination against LGBT people, for example, by faith-based schools, hospitals and charities
Improving LGBTIQA+ safety and inclusion in schools
Improving LGBTIQA+ access to appropriate and inclusive aged care
Establishing LGBTIQA+ policy groups in federal government agencies such as health, education, the federal police, justice and the Prime Minister’s department
Developing mechanisms to consult with all existing LGBTIQA+ organisations and fund them to properly represent their constituents
Developing strategies around suicide and mental health, aged-care, homelessness, Indigenous LGBTIQA+ people and family violence prevention
Recognising LGBTIQA+ people in the Census by asking questions about sexual orientation, gender identity and variations of sex characteristics
Removing the ban on sexually-active gay/bi men, and trans women, giving blood and replacing it with a policy of individual risk assessment for all potential donors
Medicare funding for gender transition and other gender-affirming health care, and
Legislative prohibition of unconsented and deferrable medical interventions on children born with innate variations of sex characteristics.
I can almost hear the reactions of the ACL, and extremist columnists in the Murdoch media, to such a list: that it represents some kind of radical and dangerous left-wing agenda. Or, to transphobic bigots like Katherine Deves, that its implementation would be a ‘Rainbow Reich’.
But is it, really? Or are these priorities actually eminently reasonable, reflecting nothing more than the aspiration to enjoy what many (although not all) Australians already take for granted?
There is nothing radical about wanting all children to learn and to grow in safe and inclusive school environments, free from discrimination on the basis of who they are.
There is nothing dangerous in suggesting that teachers and other workers should be employed on the basis of their skills and qualifications, not their sexual orientation or gender identity.
The desire to grow old with access to high-quality, safe and supportive aged care services must be a universal one.
As is the basic want for essential Medicare-funded health services to allow people to live the lives they were meant to enjoy.
And surely very few people could argue against protecting children born with innate variations of sex characteristics from deferrable medical interventions until they are old enough to consent to them themselves?
While many of the other priorities (establishing policy groups and developing strategies, providing funding for LGBTIQA+ organisations and including LGBTIQA+ people in the Census) are merely the formal mechanisms required to ensure these objectives are achieved, and maintained.
Seen in this way, the above priorities are neither radical, nor dangerous. Instead, they are both reasonable, and the bare minimum of what needs to happen.
The fact this list (and the much longer list in the Just.Equal Australia survey report itself) is so lengthy is instead a reflection of the lack of action on these issues over the past nine years, with the Abbott, Turnbull and (especially) Morrison Governments either ignoring the LGBTIQ community and our needs, or in some cases (like the safe schools debate, plebiscite and postal survey, and proposed Religious Discrimination Bill) going out of its way to make our collective lives much more difficult.
So, we know what the needs are. How likely are they to be met under the new Albanese Labor Government?
The answer to that question is both complicated, and also pretty straight-forward (which we’ll return to later).
To begin, we should acknowledge that many LGBTIQ Australians are viewing the new Government with complex emotions, including an understandable sense of caution, anxiety even.
This is due both to what many perceived to be a failure to adequately call out the toxic transphobia of Katherine Deves during the election campaign itself. As well as the decision in February to vote for the Morrison Government’s Religious Discrimination Bill despite the failure of Labor’s amendment to remove the damaging statement of belief provision, and the failure of Labor to support cross-bench amendments to remove the Bill’s override of state and territory anti-discrimination protections for teachers in religious schools.
As with many other areas, the Albanese Labor Government also went to the election with what could be described as ‘small target strategy’ in relation to LGBTIQ policy.
In The Conversation, Paula Gerber noted this included commitments to:
Count LGBTIQ people in the 2026 Census
Protect LGBT students in religious schools against discrimination, and
Increase funding for LGBTIQ+ health, mental health and family violence prevention services.
Professor Gerber also describes the much vaguer, and far less reassuring, policy to ‘amend anti-discrimination laws so that… all teachers are protected from discrimination at work (while maintaining the right of religious schools to preference people of faith in the selection of staff)’ [emphasis added]. It remains to be seen how much (unjustifiable) discrimination against LGBT teachers such a policy would continue to permit.
On a broader range of LGBTIQ policy issues, such as discrimination against LGBT workers and people accessing services by other religious organisations, Medicare funding for gender transition, and ending coercive surgeries on intersex children, the then-Opposition was largely silent.
Which means the Albanese Government’s LGBTIQ policy agenda is simultaneously far superior to that of the Government it replaced and far less than what is necessary to deliver genuine equality.
Our first challenge therefore is to push the new Government to go much, much further in its policy commitments.
The second challenge is related to the first – and that is, even if we secure additional LGBTIQ policy commitments, we will need to keep up the pressure to ensure they are actually delivered amidst what will be an incredibly packed legislative agenda.
After all, it is not just LGBTIQ issues on which the previous Government held back progress. In this term of Parliament alone, the Albanese Government will need to deliver on real climate change commitments, creating a federal independent commission against corruption, implementing all of the Respect@Work recommendations, and holding a referendum to enshrine a Voice to Parliament in the Constitution as part of the Uluru Statement from the Heart (and plenty more besides, such as dealing with the energy and cost of living crises).
It will take sustained advocacy from the LGBTIQ community to ensure our issues are not forgotten, or put in the ‘second term basket’ (with no guarantee they will ever be dealt with).
The third challenge is a familiar one – the return of a Religious Discrimination Bill, which incoming Attorney-General Mark Dreyfus has confirmed will come before Parliament at some point this term.
Now, I know many people will be triggered simply by hearing that three-word legislative title alone, but we should remember that prohibiting discrimination on the basis of religious belief is not a negative thing in and of itself (with most states and territories already doing so, including jurisdictions with strong LGBTI anti-discrimination protections like Tasmania, the ACT and, following recent reforms, Victoria).
But we will also need to be prepared to push back, firmly, against any provisions which go beyond prohibiting discrimination on the basis of belief to instead entrench the ability of religious individuals and organisations to discriminate against women, LGBT people, people with disability and people of minority faiths (which were the problematic features of the Morrison Bill).
The good news is the make-up of the new Parliament looks to be conducive to meeting these challenges.
That includes the presence of people who I would consider allies to the LGBTIQ community inside the Government itself, including in key portfolios (starting with Mark Dreyfus himself, who was Attorney-General under the last Labor Government when the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed).
And of course it includes the expanded Parliamentary presence of the Australian Greens, now with four seats in the House of Representatives (up from one) and 12 in the Senate (up from nine).
Throughout the last term, not just on the Religious Discrimination Bill but on other issues like amendments to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against discrimination, the Greens consistently demonstrated their support for LGBTIQ law reform (which is a testament to the great work of their then-spokesperson for LGBTIQA+ issues, Senator Janet Rice – new spokesperson Stephen Bates has big shoes to fill).
The independent cross-bench has also grown significantly too. We already had Helen Haines, Rebekha Sharkie, Zali Steggall, and Andrew Wilkie, all of whom voted to support our community throughout the Religious Discrimination Bill debate.
They have been joined by six new so-called ‘Teal’ MPs. While they are obviously yet to have a voting record against which we can judge them, they all represent electorates which voted strongly in favour of marriage equality:
Kate Chaney in Curtin (72.2% Yes)
Zoe Daniel in Goldstein (76.3%)
Monique Ryan in Kooyong (73.7%)
Sophie Scamps in Mackellar (68%)
Kylea Tink in North Sydney (71.8%), and
Allegra Spender in Wentworth (80.8%).
Given those results, if any of them choose to vote against LGBTIQ equality this term, they could find themselves exiting the Parliament at the next poll.
The Senate also looks promising, with the cross-bench including new Senator for the ACT David Pocock (who was an early and passionate supporter of marriage equality), and now two members of the Jacquie Lambie Network (noting that Lambie herself had been a strong advocate against the Religious Discrimination Bill, including seeking to protect Tasmania’s best practice anti-discrimination laws from Commonwealth override).
Overall, then, while there are challenges ahead in terms of making long-overdue progress on LGBTIQ equality, and navigating how and when to advance particular issues might sometimes be complex, there is also plenty of opportunity, if only we can take advantage of it.
Or, in the more straight-forward words of my National Party-voting parents on the night after the election (yes, we have some interesting discussions about politics): ‘There might never be a better election outcome to achieve the changes you have been campaigning on for so long.’
I agree, and will be doing my best to make sure they happen.
Because LGBT students in religious schools have already waited long enough.
LGBT teachers and other workers, too.
Trans and gender diverse people have waited long enough to have access to Medicare-funded gender-affirming healthcare, including transition.
And children born with innate variations of sex characteristics have waited far, far too long to have their fundamental rights to bodily autonomy protected.
The last term of Commonwealth Parliament truly was the worst of times. There is absolutely no guarantee the current term of Parliament will be the best. But there’s also no reason why it can’t be. So let’s get to work.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Prime Minister Anthony Albanese on election night. There is plenty of work to do to ensure it is ‘A Better Future’ for LGBTIQ Australians.
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The ‘star candidate’ of the first week of the election campaign – for all the wrong reasons – has undoubtedly been the Liberal candidate for Warringah, Katherine Deves.
Hand-picked by Prime Minister Scott Morrison, the head of anti-trans lobby group Save Women’s Sport Australasia has left a long trail of public comments for the media to scrutinise. And, well, the results aren’t pretty.
Already this week, they have reported on posts:
Describing trans kids as ‘surgically mutilated and sterilised’, while sharing topless images of a trans teenager who had undergone top surgery.
Saying she is ‘triggered’ by the rainbow pride flag (‘I get triggered by it. Whenever I see it on social media I think ‘What now? What are they demanding now?’ And I grew up with gay relatives and siblings and hung out in Surry Hills and X in Sydney in the 1990s. Lots of LGB family and friends, their movement has been destroyed.’)
Likening her lobbying against the participation of trans women and girls in sport to standing up against the Holocaust.[i]
Alleging ‘half of all males with trans identities are sex offenders’ (her tweet: ‘Half of all males with trans identities are sex offenders, compared with less than 20% for the rest of the male estate. That should tell you something.’), and
Belittling the serious mental health harms caused by transphobia (‘We hear from the other side the toll, all the harm, the devastation, we’re all going to commit suicide and blah blah’).
When confronted by the media about the above, Deves has been forced to apologise. It seems inevitable there will be more transphobic comments found, and more apologies, in coming days.
For people who only pay attention to federal politics every three years, Deves’ comments must seem bizarre, and extreme. And they are obviously both.
But, one thing they are *not* is an outlier.
Unfortunately, the Liberal candidate for Warringah’s views must be seen in the context of a rising tide of transphobia in Australian political discourse over the past six or seven years.
This includes the moral panic against the Safe Schools program in 2015 and early 2016, after which then-Prime Minister Malcolm Turnbull first reviewed it, then ‘gutted’ its contents, before finally de-funding it completely.
And the same-sex marriage postal survey in the second half of 2017, which became a platform for groups opposing marriage equality to target trans and nonbinary children (indeed, one of the leading organisations against equality, the Marriage Alliance, has since become anti-trans lobby group Binary Australia).
Following his elevation to the Prime Ministership, Scott Morrison himself has engaged in the anti-trans culture wars on a number of occasions (tweeting against teacher support for trans kids – describing them as ‘gender whisperers’ – in September 2018; criticising a trans-inclusive Cricket Australia participation policy in April 2019; and personally intervening to remove gender identity-inclusive toilet door signs in the Department of Prime Minister and Cabinet in August 2019).
However, from my perspective I would argue that the Coalition’s political campaign against trans and gender diverse Australians has really escalated in the past ten months.
In fact, I would pin-point that escalation to ten months ago yesterday (15 June 2021), when the Senate considered a motion from extremist One Nation Senator Malcolm Roberts on the subject of ‘childhood gender dysphoria’, which effectively called for gender-affirming health care to be denied to trans and nonbinary children and young people.
Not only was Roberts’ motion not based on either the evidence of experts in the field, or the lived experience of trans people themselves, but if adopted as public policy would directly lead to serious health and mental health harms for gender diverse kids.[ii]
Despite this, the Morrison Liberal/National Government granted its Senators a conscience vote, and they supported this attack on trans health care by a margin of 21 to 6.
Coalition Senators voting to deprive trans kids of evidence-based support included Attorney-General Michaelia Cash, and Assistant Minister to the Attorney-General Amanda Stoker.
The only Coalition Senators who voted to support trans kids were Simon Birmingham, Andrew Bragg, Richard Colbeck, Jane Hume, Marise Payne and Dean Smith (thank you).
Thankfully, the motion was defeated overall (because Labor, the Greens and Jacquie Lambie opposed it), but from my perspective it marked a turning point in debate, with attacks by the Government only becoming more frequent in the months since.
For example, less than three months later in September last year the Government voted against straight-forward amendments to the Fair Work Act 2009 (Cth), which simply would have ensured trans, nonbinary and intersex workers had exactly the same access to the Fair Work Commission as other employees.
There was absolutely no justification for their opposition. Not only because gender identity and intersex status were already included in the Sex Discrimination Act 1984 (Cth), but also because the then-Tony Abbott-led Liberal/National Opposition had actually supported the inclusion of those protected attributes back in 2013.
The Government’s position on trans (and intersex) rights had effectively gone backwards in the eight years since. It was, as I wrote at the time, both a pathetic position to take, and antipathetic to the rights of some of the most vulnerable members of the community.
Then of course there was the Religious Discrimination Bill, introduced to Parliament less than three months later again, in November of last year.
Overrode existing state and territory anti-discrimination laws to allow demeaning and derogatory comments against women, LGBT people, people with disability and even people of minority faiths, provided they were religiously-motivated
Overrode existing state and territory anti-discrimination laws that protect LGBT teachers in religious schools against discrimination (especially in Tasmania, the ACT and Queensland, and soon to commence laws in Victoria), and
Introduced religious exceptions which may have allowed discrimination against LGBT students in religious schools ‘under the guise of religious views’.
From this list it is clear trans people were one of many groups who stood to lose out under this legislation (so it wasn’t *only* a transphobic Bill).
But it is also undisputed that trans people were squarely in the sights of religious fundamentalists as they contemplated how they might (ab)use their new special privileges to discriminate had the laws passed (including Citipointe Christian College’s enrolment contract which primarily targeted trans kids, and Senate evidence of the Presbyterian Church of Victoria demanding the ability to misgender trans people in the workplace).
The Government then sought to mistreat trans people again when the Religious Discrimination Bill was considered by Parliament in February 2022, with Prime Minister Morrison introducing amendments that only protected lesbian, gay and bisexual students in religious schools against discrimination (and even then only against expulsion).
Even worse, after the Religious Discrimination Bill package was amended by the Opposition, cross-bench and five moderate Liberal MPs to protect trans and nonbinary kids, Morrison then chose not to have the Bill considered by the Senate at all (at least partially at the behest of the Australian Christian Lobby and Christian Schools Australia).
That is how much the Liberal/National Government opposes the rights of trans and nonbinary children: they were prepared to abandon another of their core promises entirely just because gender diverse students might have been protected as a by-product.
Then, on the very same day the Religious Discrimination Bill was placed on pause (to the relief of many, myself included), Tasmanian Liberal Senator Claire Chandler introduced a private members Bill to amend the Sex Discrimination Act in order to exclude trans women and girls from participating in women’s sport (a law which also would have had a significant detrimental impact on intersex women).
Within two weeks, the ‘Save Women’s Sports’ Bill had been personally endorsed by Prime Minister Morrison himself, while campaigning in Tasmania. Even though it is still not ‘official’ Government policy, this endorsement dramatically increases the risk this law will be passed should the Coalition win in May.
Finally, in the dying days of the Parliamentary term in early April, Liberal Senator Alex Antic misused Senate Estimates hearings by asking a range of witnesses how they would define ‘woman’, which is simply re-heated transphobic culture war nonsense copied directly from the Republican Party handbook in the United States.
A few things become clear when looking back on the events of the past ten months in this systematic way.
First, the Liberal/National Government’s war on the rights of trans Australians is relentless.
Second, their attacks only seem to be becoming more frequent.
Third, far from being an outlier, a candidate like Katherine Deves is likely to feel right at home inside the Coalition.
Indeed, her advocacy efforts, aiming to exclude trans women and girls from participating in women’s sport, seems to be the main reason why she was chosen in the first place.
On the first full day of the campaign (Monday 11 April) Morrison told 2GB radio that:
‘She’s [Deves is] standing up for things that she believes in, and I share her views on those topics. And, and I think it’s important that they’re raised and it’s got nothing to do with, you know, the broad agenda debates. This is just about, you know, common sense and what’s right. And I think Katherine’s right on the money there.’
Before telling another radio station later that day, during a discussion of trans inclusion in (or exclusion from) sport: ‘I welcome Katherine’s selection, pleased to play a role in that. I think she’s raised very important issues. I think Claire Chandler’s also been outspoken and brave on these issues. I share their views’ (emphasis added).
Katherine Deves was not chosen as a candidate in spite of her transphobic views. Deves was hand-picked as a candidate, by Scott Morrison, as a direct result of her anti-trans advocacy.
In fact, it seems to have been her primary ‘contribution’ to public life. The only other time I have come across her previously was listening to her as a witness at hearings into Mark Latham’s anti-trans kids Bill, in April 2021.
Perhaps unsurprisingly, Deves (wearing her Save Women’s Sport Australasia hat) supported Latham’s Bill to erase trans students from classrooms and schoolyards across NSW – legislation which was so extreme that the NSW Perrottet *Liberal/National* Government ultimately rejected it because it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’.
I started this post by highlighting some of the more appalling social media posts and other public comments for which Deves has been forced to apologise this week. But, rather than the (admittedly extreme) ways in which she expresses her position, it is the substance of those views – seeking to exclude trans women and girls from sport, supporting laws to erase trans kids and nonbinary students from classrooms – for which she should apologise.
But we already know that she won’t, because campaigning against trans rights is what Katherine Deves is known for.
I will now end this post by making three final points.
First, none of the above is news to trans and gender diverse Australians, who have been enduring this culture war for the past six or seven years, and are all-too-aware of its escalation over the past ten months. We already know it is having a devastating impact on their mental health and wellbeing, and will continue to do so for as long as it is allowed to go on.
Second, none of this will stop until the rest of us stand up and make it stop. Trans and gender diverse Australians have been fighting this battle on their own for far too long. It’s time for cis allies, including within the LGBTIQ community, but also in the Labor Opposition, Greens, moderate Liberals, and everyday members of the community, to tell the Morrison Liberal/National Coalition that enough is enough.
Trans women are women.
Trans men are men.
Trans rights are human rights.
And trans kids will be protected with all of our collective might.
Third, perhaps the most frustrating part of all is that spending significant time fighting back against attacks on trans rights means there’s less time to advocate for much-needed positive changes to improve the lives of trans Australians, because the project of trans equality is far from complete.
This obviously includes amending the Fair Work Act to explicitly protect trans and nonbinary (and intersex) workers.
And amending the Sex Discrimination Act to remove the ability of religious schools to lawfully discriminate against LGBT students, and teachers and other staff members.
It also includes removing the high out-of-pocket costs for gender-affirming health care which places transition financially out of reach for too many trans Australians (and leaves others under severe financial stress).
And plenty more besides.
These are the things we need to happen. Not another ten months of unrelenting attacks on the trans community. And not the election of candidates like Katherine Deves, or other people with views like hers.
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.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Katherine Deves
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Footnotes:
[i] Full quote: ‘I’ve always loved 20th-century history and I think many people would say to themselves, ‘I’d never been to villages that stayed quiet, while the trains went past or whatever, I would have been part of the French Resistance, the underground, you know, I would be one of those people.’ And when all of this was happening, and no one was speaking out, I thought, this is it. This is the moment in my life, when I’m going to have to stand up and say something against the status quo and against the establishment and say, ‘I don’t think this is right’.’
(i) in 100 years of diagnostic history of childhood gender dysphoria (GD) there is an alarming trend that teenage girls, with no history of GD, have become the largest group seeking treatment,
(ii) in the United States of America, girsl requesting gender reassignment surgery in 2016-17 rose 400%,
(iii) in the United Kingdom, girls presenting with GD in the last 10 years rose 4000%, and
(iv) Australia’s Royal Children’s Hospital indicates referrals have grown from 1 every two years to 104 patients in 2014;
(b) further notes that:
(i) Sweden’s leading gender clinic has ended treatment of minors with hormonal drugs due to safety concerns, citing cancer and infertility, and
(ii) suicide mortality rate for transgendered people is 20 times higher than comparable peers;
(c) supports children presenting with GD to be given:
(i) the ‘wait and see’ method as the first choice, since evidence shows between 70-90% of young people’s dysphoria resolves itself by puberty, and
(ii) a comprehensive therapeutic pathway, since a large percentage of these children have pre-existing mental health issues, and not a medical pathway; and
(d) condemns the practice of children receiving:
(i) experimental and unproven medical treatments of irreversible puberty blockers and sex hormone treatments, and
Problem: Transgender and intersex workers are not explicitly protected under the Fair Work Act 2009 (Cth).
While discrimination on the basis of sexual orientation, gender identity and intersex status are all prohibited under the Sex Discrimination Act 1984 (Cth), only sexual orientation is included as a relevant attribute in the Fair Work Act for the purposes of protections against ‘adverse action’ (section 351(1)), and ‘unlawful termination’ (section 772(1)(f)), as well as in sections covering the contents of awards (section 153) and enterprise agreements (section 195), and the functions of the Fair Work Commission (section 578(c)).
This means that while the ability of lesbian, gay and bisexual workers to bring complaints to the Fair Work Commission (FWC) is certain, there is significant doubt about whether trans, nonbinary and intersex employees can do the same.
In practice, a trans worker who is mistreated in the workplace because of their gender identity, or an intersex employee who is fired on the basis of their sex characteristics, may be unable to have their issue resolved quickly and at low cost via the FWC, and instead be forced to go through a much less timely, and potentially more expensive, complaint to the Australian Human Rights Commission (and then in federal court after that).
This is a completely unjustified discrepancy in the rights of LG and B Australians on one hand, and transgender and intersex people on the other, and it must be resolved.
Solution: Amend the Fair Work Act to explicitly protect transgender and intersex workers.
Simple, right? Well, it certainly should be.
Sadly, however, the Liberal/National Government has proven itself to be completely uninterested in doing anything to address this most straightforward of problems.
What makes that vote even more disappointing is the then Opposition, under Tony Abbott, had actually voted in favour of protecting transgender and intersex people in the SDA back in 2013 – meaning the Liberal/National Coalition has gone *backwards* in its support for these groups in the subsequent eight years.
In any event, with the election expected to be called today (and at the latest by Monday 18 April), it is clear the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act will not be addressed this term.
In which case, I think we should ensure that finally addressing this problem is made an election issue for the upcoming poll (on May 14 or 21).
What policy commitments do we want?
From my perspective, any election commitment on this issue should comprise four, inter-related parts.
First, a commitment to ensure the Fair Work Act explicitly covers trans, nonbinary and intersex workers.
Second, a commitment to use best practice terminology to do so.
This includes adding a protected attribute of ‘gender identity’, using the definition in section 4 of the Sex Discrimination Act (‘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’) as a starting point, and finalised in consultation with trans community organisations.
However, while the SDA currently uses the protected attribute ‘intersex status’ (defined in section 4 as ‘the status of having physical, hormonal or genetic features that are (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male’) this is no longer supported by the intersex community, at least in part because it has been interpreted by some as relating to identity rather than biology.
Instead, the best practice terminology is now ‘sex characteristics’, as called for in the historic March 2017 Darlington Statement, and most recently defined in the Equal Opportunity Act 2010 (Vic) as:
‘a person’s physical features relating to sex, including-
(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’
The definition of sex characteristics should also be finalised in consultation with intersex community organisations, particularly Intersex Human Rights Australia.
Third, if the attribute of ‘sex characteristics’ is added to the Fair Work Act, the Parliament should use the same opportunity to update the Sex Discrimination Act, replacing the protected attribute of intersex status with sex characteristics.
Fourth, a commitment to make these reforms within the first 12 months of the next Parliamentary term.
This discrepancy has existed since the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, in June of that year.
Which means by mid-2023 it would have been a full decade of trans, nonbinary and intersex workers having less clear, and potentially lesser, workplace rights than lesbian, gay and bisexual employees.
That is far too long for workers to wait for what are basic protections, making a request that it be fixed in the next year entirely reasonable.
In this context, today I sent the below emails to the Government, Opposition and Greens.
The email to the Government highlights their rejection of amendments to the Fair Work Act in September last year, and asks them to take concrete action to protect trans, nonbinary and intersex workers as a matter of urgency.
The email to the Opposition welcomes their vote to support adding ‘intersex status’ to the Fair Work Act last September, while calling on them to go further, and commit to instead add the protected attribute of ‘sex characteristics’ if they form Government.
Finally, the email to the Greens thanks them for their leadership on this issue to date (it was their amendments that were voted on last year) and urges them to continue to prioritise this reform in the upcoming term of Parliament.
Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)
All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.
These protections must include transgender and intersex employees.
As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.
In this context, it was extremely disappointing that you, and other Government Senators, voted to reject straight-forward amendments to address this discrepancy in September 2021, thus leaving the position of trans, nonbinary and intersex workers unclear.
In light of the upcoming federal election, I call on you, and the Liberal/National Coalition, to unequivocally commit to fixing this problem as a matter of priority next term.
Not only would this be the right thing to do in principle, it would also be consistent with the actions of the then Abbott Opposition in 2013 (of which you were a member), to support the prohibition of discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth).
A commitment in four, inter-related parts
From my perspective, this commitment should include the following four, closely-linked, elements:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Morrison Liberal/National Government.
Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net
Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)
All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.
These protections must include transgender and intersex employees.
As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.
In this context, the ALP’s support for amendments in September 2021 to add gender identity and intersex status as protected attributes in the Fair Work Act was obviously welcome, although it was disappointing this did not extend to supporting the best practice terminology of sex characteristics.
In light of the upcoming federal election, I call on you, and the Australian Labor Party, to commit to protecting trans, nonbinary and intersex workers as a matter of priority next term.
Not only would this be the right thing to do in principle, it would also be consistent with, and build on, one of the major achievements of the most recent Labor Government, the passage of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (during your term as Attorney-General).
A commitment in four, inter-related parts
From my perspective, this commitment should include the following four, closely-linked, elements:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Albanese Labor Opposition.
Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net
Lack of explicit protections for trans, nonbinary and intersex workers under the Fair Work Act 2009 (Cth)
Thank you for your ongoing leadership on this issue in the Commonwealth Parliament.
This includes regularly raising the lack of explicit protections for transgender and intersex employees in the Fair Work Act 2009 (Cth) during Senate Estimates hearings.
Most importantly, thank you for introducing amendments to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in September last year which, at best, would have added gender identity and sex characteristics as protected attributes to the Fair Work Act or, at a minimum, would have included gender identity and intersex status instead.
As you know, I shared your disappointment when neither set of amendments was successful.
However, I also share your passion to ensure this work is finally completed.
For your information, and in light of the upcoming federal election, this morning I have written to both the Attorney-General and Shadow Attorney-General calling on the Government and Opposition respectively to promise the following:
First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.
Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.
Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.
Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.
Ideally, both major parties will commit to protecting the rights of trans, nonbinary and intersex workers, and this reform will be passed quickly and on a bipartisan basis.
However, in the event that neither of the major parties is willing to make these promises, or that they do but do not follow through on them with appropriate and timely action, I urge you to continue fighting on this issue.
In particular, if no amendments are forthcoming by mid-2023, I call on you to reintroduce your amendments to the Fair Work Act either as part of a relevant legislative package, or via a private members Bill.
I look forward to receiving your response to this correspondence.
As with my emails to the Government and Opposition, please note that, as your response on the above will be in the public interest, I will publish the contents of any correspondence I receive on my personal website: www.alastairlawrie.net
Sincerely,
Alastair Lawrie
*****
Update, Sunday 8 May 2022:
On Friday (6 May) I received the following response from Greens Senator, and LGBTIQA+ spokesperson, Janet Rice:
Dear Alistair Lawrie
Thank you for your correspondence of 10 April 2022, in relation to improvements to antidiscrimination legislation, in order to protect members of LGBTIQA+ communities. I would like to thank you for your tireless and important advocacy on such important issues, and in particular the legal expertise you have brought to issues which have such crucial importance for people’s lives.
Let me re-affirm the Greens’ commitment to fighting for LGBTIQA+ rights, as set out in our policy.
We will continue to advocate for the necessary changes to the Fair Work Act 2009 to ensure that workers who are trans or have intersex variations are protected on the same basis as other groups. That should include appropriate definitions in relation to gender identity and sex characteristics, developed in consultation with relevant communities. Those changes should also be accompanied by relevant updates to the Sex Discrimination Act 1984 as needed.
As you are aware, the Greens have a significant opportunity in this Parliament to achieve balance of power, potentially in both the House of Representatives and the Senate. We will continue to advocate as forcefully as we are able to, for these changes and others to protect the rights of LGBTIQA+ people.
Yours sincerely
Senator Janet Rice Australian Greens LGBTIQA+ spokesperson
This is obviously encouraging, including commitments to advocate for the introduction of gender identity and sex characteristics as protected attributes in the Fair Work Act, with definitions to be developed in consultation with trans and intersex communities.
Disappointingly, I am yet to receive any response from either Senator Cash on behalf of the Government, or Mark Dreyfus on behalf of the Australian Labor Party.
Today I have written again to both, asking for any response to be provided by Sunday 15 May, so that they can be published prior to the election. I will obviously update this post if and when any such response is received.
*****
Update Wednesday 18 May:
Well, the update is really that there is nothing to update.
Unfortunately, despite writing again to both the Attorney-General Michaelia Cash and her Shadow Mark Dreyfus, I have received no response from either the Morrison Liberal/National Coalition, or the Albanese Labor Party. Which is perhaps not surprising in the case of the former (given they voted against protecting trans, gender diverse and intersex workers in the Fair Work Act in September last year), but is more disappointing in the case of the latter given they actually supported including gender identity and intersex status as protected attributes at a minimum (although need to go one step further by supporting the best practice terminology of sex characteristics).
I will of course update the post further if any response is received between now (COB Wednesday) and the opening of polls on Saturday morning.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Commonwealth Attorney-General Michaelia Cash and Shadow Attorney-General Mark Dreyfus
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The Morrison Government’s Religious Discrimination Bill is a serious threat to the rights of women, LGBT people, people with disability, people of minority faiths and many other Australians.
However, because anti-discrimination law is already highly technical, and the proposed Bill is both incredibly complex, and contains a range of provisions that are completely unprecedented, it can be difficult to understand exactly what is at stake.
The following, then, is my attempt to explain the major problems contained in the Religious Discrimination Bill in 1000 words or less:
*****
The ‘statement of belief’ provision protects offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability, people of minority faithsand others on the basis of who they are.
It does this by taking away existing protections against discrimination under all Commonwealth, state and territory anti-discrimination laws, including targeting the best practice provisions of Tasmania’s Anti-Discrimination Act.
As long as they are motivated by religious belief, people will be empowered to make demeaning and derogatory comments in all areas of public life: in workplaces, schools and universities, hospitals, aged care, public transport, cafes, restaurants and shops. Everywhere.
And because the definition of statement of belief depends only on the subjective interpretation of the person making them, it protects fringe or radical views, including religiously-motivated anti-Semitism, Islamophobia and even racism.
By overriding all other anti-discrimination laws, the ‘statement of belief’ provision also denies access to justice to victims of discrimination.
This is because it effectively introduces a Commonwealth ‘defence’ to state laws, meaning state tribunals – which hear the majority of anti-discrimination cases – will be unable to resolve complaints where this issue is raised.
These cases will instead need to be heard by state supreme courts, or federal courts, at massively-increased costs to complainants.
The groups most likely to experience religiously-motivated discrimination – women, LGBT people, people with disability and people of minority faiths – will lose the most.
The ‘statement of belief’ provision also grants extraordinary powers to the Commonwealth Attorney-General to take away existing rights in other areas, by ‘prescribing’ additional laws that will be undermined.
Laws that are at risk include:
‘Safe access zone’ protections covering pregnant people seeking lawful terminations
Bans on sexual orientation and gender identity conversion practices, and even
Section 18C of the Racial Discrimination Act, which prohibits racial vilification.
The ‘religious exceptions’ in the proposed Bill are just as dangerous.
While many anti-discrimination laws contain ‘religious exceptions’, the special privileges allowing religious organisations to discriminate under the Religious Discrimination Bill are far broader than any other Commonwealth, state or territory anti-discrimination law.
This is both because it adopts a much more lenient test than other laws to determine when this discrimination is permitted (only requiring that one other person of the same religion could reasonably consider the discrimination to be justified).
And because it applies to a much wider range of organisations than other laws, covering charities, hospitals, aged care facilities, accommodation providers, disability service providers, camps and conference sites and even religious organisations undertaking some commercial activities.
Unlike the Sex Discrimination Act and similar laws, the Bill does not require these bodies to have been ‘established for religious purposes’, imposing the much easier test of ‘conducted in accordance with’ religious beliefs.
The people who stand to lose most from these exceptions are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist workers denied jobs, promotions and training they are qualified for simply because of their religious beliefs (or lack thereof).
These exceptions also apply to ‘religious educational institutions’, covering everything from child-care and early learning centres, through to schools, colleges and universities.
However, unlike best practice provisions in Tasmania, Queensland, the ACT and NT which limit these exceptions to enrolment only, the proposed Bill permits discrimination against students on the basis of religious belief throughout their education.
In this way, the Religious Discrimination Bill allows discrimination against children and young people, denying them their religious freedom to question, explore and develop their own faith as they learn and grow, without fear of punishment.
The same provisions could also be used by religious schools to discriminate against LGBT kids, not on the basis of their sexual orientation or gender identity itself, but on whether they affirm statements like ‘homosexuality is intrinsically disordered’ or ‘God created man and woman, therefore being transgender is sinful’. The outcome would nevertheless be the same: LGBT kids being mistreated because of who they are.
This means that, even if the Morrison Government finally implements its promise to amend the Sex Discrimination Act to protect LGBT students, religious schools could still discriminate against them via alternative means.
The Bill also allows discrimination against teachers and other employees of religious educational institutions, meaning they can be hired and fired on the basis of their faith, not their skills.
In addition, it grants extraordinary powers to the Commonwealth Attorney-General, allowing them to take away existing rights from teachers under state and territory anti-discrimination laws.
This includes recently-passed laws in Victoria which only permit discrimination where it is an inherent requirement of the role, and ‘reasonable and proportionate in the circumstances’, as well as similar laws in operation in Queensland for two decades, and in Tasmania and the ACT.
As with students, these provisions could also provide an alternative means to permit discrimination against LGBT workers ‘under the guise of religious views’. LGBT teachers and other staff are potentially at risk in Victoria, Queensland, Tasmania and the ACT.
Finally, the Bill includes a range of other significant problems:
Removing the ability of qualifying bodies to take appropriate action about harmful ‘statements of belief’ made by professionals outside the workplace (for example, protecting repeated homophobic and transphobic comments by a doctor in a small town, even where this makes it unsafe for LGBT people to access essential healthcare)
Providing an unprecedented ability for religious organisations to make discrimination complaints in their own right, including allowing faith bodies to take legal action to prevent Commonwealth, state and territory governments from requiring organisations that receive public funding not to discriminate against LGBT people
Preventing local governments from passing by-laws to address harmful anti-LGBT ‘street preachers’
Introducing a totally unnecessary amendment to the Charities Act to ‘protect’ charities advocating a ‘traditional view of marriage’ (and those charities only), and
Expanding ‘religious exceptions’ in the Marriage Act to allow religious educational institutions to deny the use of their facilities for LGBTI-inclusive weddings, even where these facilities are offered to the public on a commercial basis.
Overall, the Religious Discrimination Bill promotes rather than prohibits discrimination. It must be blocked.
(999 words)
*****
The above summary does not even cover all of the many problems created by the Religious Discrimination Bill. If you would like to know more of the technical details, I encourage you to read the public submissions made by:
the Australian Discrimination Law Experts Group, here
to the two Parliamentary committees (Joint Committee on Human Rights, and Senate Committee on Legal and Constitutional Affairs) which have been holding inquiries into this legislation over summer.
Both Committees are due to table their final reports to Parliament on Friday 4 February, meaning the Religious Discrimination Bill could be debated, and passed, in the sitting weeks beginning on Tuesday 8 February.
There is, however, still time to stop this extraordinary and extreme, radical and unprecedented – and downright dangerous – law, but only if you make your opposition to it known right now.
There are a number of actions you can take, today:
Use this Equality Australia webform to write to your local MP, from any political party, urging them to oppose the Religious Discrimination Bill
Contact the following list of moderate and/or lesbian and gay Liberal MPs and Senators, expressing your serious concerns about the Bill and asking them to cross the floor to protect the rights of all Australians (using their contact details from Parliament House):
Angie Bell (Member for Moncrieff)
Dave Sharma (Wentworth)
Katie Allen (Higgins)
Fiona Martin (Reid)
Trevor Evans (Brisbane)
Tim Wilson (Goldstein)
Trent Zimmerman (North Sydney)
Warren Entsch (Leichhardt)
Bridget Archer (Bass)
Andrew Bragg (Senator for New South Wales)
Richard Colbeck (Senator for Tasmania), and
Dean Smith (Senator for Western Australia).
Together, we can ensure the Religious Discrimination Bill is rejected, for the benefit of women, LGBT people, people with disability, people of minority faiths and many, many other Australians whose rights would be at risk if this divisive law was allowed to pass.
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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]
On Thursday, it was reported that Attorney-General Michaelia Cash has written to the Australian Law Reform Commission, asking for ‘detailed drafting’ to protect LGBT children from discrimination in faith-based schools.
‘It is … the government’s position that no child should be suspended or expelled from school on the basis of their sexuality or gender identity,’ wrote Cash.
There are at least six reasons why this seemingly positive expression of support for LGBT kids is a bitterly disappointing statement of hollow nothingness.
First, we’ve heard this all before. On 11 October 2018 the Prime Minister, Scott Morrison, stated unequivocally: ‘We do not think that children should be discriminated against’. He promised to amend the Sex Discrimination Act to protect LGBT students in religious schools against discrimination before the end of that year.
That was more than 3 years ago. 1,137 days to be exact (and yes, I’m counting). In that time, the Morrison Government has failed to do anything concrete to implement its promise.
Second, the Attorney-General was writing to ask the ALRC to do what it was already tasked to do by her predecessor, Christian Porter, back in April 2019. His original terms of reference requested the Commission to review religious exemptions, ‘having regard to… the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education.’
More than 30 months later, the new Attorney-General is trying to spin a request for ‘detailed drafting’ as being something new. Exactly how that varies from ordinary ALRC recommendations is a distinction without a difference.
Third, we don’t need ‘detailed drafting’. We know how to protect LGBT students in religious schools against discrimination. Four jurisdictions – Queensland, Tasmania, the ACT and NT – have already done so. Tasmania has been protecting LGBT kids, successfully, for more than 23 years. The amendments required are simple. There’s no need to reinvent the wheel.
Fourth, there’s not even a need to invent a new Bill. In response to the Prime Minister’s promise to protect LGBT kids in October 2018, the Labor Opposition introduced their own legislation the following month (the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018). The schedule of substantive amendments came to a grand total of 70 words.
If the ALRC reports in 2023, and the Government finally takes action that same year (both of which remain big ifs), it could end up taking them 5 years to draft 70 words. At just over one word per month, they’re certainly pacing themselves.
Fifth, we can see from the time and energy expended on the Religious Discrimination Bill where the Government’s real priorities lie.
We’ve already gone through two rounds of public exposure drafts on the ‘religious freedom’ Bills package (which actually comprises three separate Bills). We’ve had 157 pages of draft legislation, before we even get to the third and final version(s) next week.
The drafting effort that has gone into the Religious Discrimination Bill demonstrates what happens when a Government wants to get something done. The comparative lack of effort in drafting straight-forward amendments to protect LGBT kids reveals what happens when they don’t.
Sixth, based on Senator Cash’s correspondence, it’s not even clear whether the Government supports ending all discrimination against LGBT students, or only removing the ability of religious schools to suspend or expel them. If it’s just the latter, then other forms of mistreatment would continue to be permitted, and the harm they experience will go on.
A child who was in Year 7 when the Prime Minister first promised to protect them from discrimination is on track to finish high school before he keeps that promise. That’s an entire generation of LGBT kids abandoned because they’re not considered a priority by their own Government.
LGBT kids don’t need more ‘detailed drafting’. They need action. What do we have instead? The Attorney-General sending the emptiest of gestures to the Australian Law Reform Commission, asking them to do something they’ve already been tasked to do.
It is a fig-leaf trying to cover up years of the Morrison Government’s inaction. But nothing can hide their lack of care about this issue. Because if they cared, it would have been fixed years ago.
The tragedy of it all is that, for as long as the Government prevaricates and obfuscates, vulnerable children are left exposed to abuse and mistreatment, discrimination, suspension and even expulsion, just because of who they are.
LGBT students deserve the right to learn in safety. Instead, Commonwealth anti-discrimination laws grant religious schools extraordinary special privileges to discriminate against them.
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