Inquiry into Right Wing Extremist Movements in Australia
Thank you for the opportunity to provide this short submission in response to the Committee’s inquiry into right wing extremist movements in Australia.
I do so as a long-standing advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, including in relation to anti-discrimination and vilification laws but also more broadly.
In this context, I express my genuine hope that the Committee, in its inquiry, looks at the role anti-LGBTIQ prejudice, and especially transphobia, has played in the rise of right wing extremism in Australia, in particular over the past 12 months.
The rise of homophobia, biphobia and transphobia since March 2023
There has been a disturbing rise in anti-LGBTIQ prejudice, including hate speech as well as threats of intimidation and violence, since early last year.
This has come from individuals and groups that can largely be described as being far-right in political ideology.
Some of the most notable events include:
The rally against trans rights held in Melbourne on 18 March 2023, to which neo-Nazi groups turned up, performing Nazi salutes on the steps of Victorian Parliament, and shouting at trans counter-protestors while holding a banner proclaiming ‘destroy paedo freaks’ (emphasising the explicit anti-trans views of these fascists),
The violent attack by so-called ‘Christian Lives Matter’-associated individuals on 21 March 2023 against a small group of LGBTIQ protestors, and NSW Police officers, in Belfield in Sydney, and
Disgusting and offensive homophobic comments on social media by then-One Nation MLC Mark Latham to Independent Member for Sydney Alex Greenwich MP (which I will decline to republish here), the following week.
All of the above occurred within a two-week period. Sadly, however, the rise of anti-LGBTIQ hate speech and extremism did not end there, but has continued and in some ways worsened.
The 12 months since March 2023 have seen a large number of LGBTIQ and related community events shut down amid credible threats of intimidation and violence by right wing extremists.
This includes Drag Story Times (which are nothing more than voluntary gatherings where people in costumes read books to parents and their children, promoting imagination and inclusivity) being cancelled at libraries and other community venues around the country, on the advice of police because the safety of attendees could not be guaranteed.
Most recently, this included deaths threats against ABC employees forcing the cancellation of a Drag Story Time that was to be held in the lead up to the 2024 Sydney Gay & Lesbian Mardi Gras, and a rally outside a Cumberland Council meeting in late February which was debating Drag Story Times (and which ultimately passed a motion banning them), with some protestors shouting offensively the word ‘trannies’.
It should obviously be noted that drag is not necessarily the same as LGBTIQ, although there is significant cross-over in the entertainers who perform in drag (with many being same-gender attracted and/or gender diverse) and importantly with the people who are against both conflating the two in any event (as seen clearly at the Cumberland Council protest).
The impact of these cumulative developments on the LGBTIQ community has been profound, with legitimate fears for our safety against this rising tide of extremism.
I write that as a privileged cisgender gay man, who has been out for more than 25 years and who has been advocating on LGBTIQ rights for almost as long – but who has felt less safe in public over the past year than at any point this century.
This feeling of vulnerability has been compounded by the sense the Commonwealth Government has effectively left us on our own in the face of these attacks.
The Commonwealth Government has been missing in action on anti-LGBTIQ extremism
Disappointingly, the Commonwealth Government’s response to the specific element of anti-LGBTIQ prejudice, and especially transphobia, in the overall rise of right wing extremism over the past 12 months has ranged from inadequate and incomplete, to completely absent.
Admittedly, there was widespread condemnation of Mr Latham’s tweets about Mr Greenwich, including the homophobic nature of his communications. Which was welcome, but that’s about as far as it goes.
The Commonwealth Government’s response, including its public comments, to the anti-trans neo-Nazi display on the steps of Victorian Parliament concentrated on the Nazi aspect of this activity (which obviously deserves condemnation) while largely ignoring the transphobia at its core (which is no less worthy of political denunciation).
This can be seen through its legislative response in Parliament, including in the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, which focused on the public display of Nazi symbols, including people engaging in Nazi salutes, while not addressing hate speech against LGBTIQ people more generally.
My understanding of this legislation is that it would not capture a situation of a group of thugs dressed in black assembling on the steps of Victorian Parliament, shouting at trans people and waving a banner which says ‘destroy paedo freaks’, provided they did not also wear Nazi symbols or perform a Nazi salute.
For the trans people targeted, surely both situations are intimidating – but only one is now regulated.
The Commonwealth Government has also been missing in action in terms of addressing the right wing threats of intimidation and violence against LGBTIQ and related community events, including Drag Story Times, shutting down gatherings right around the country.
This is a national problem requiring a national response, and yet I cannot recall a single strong public condemnation from a senior Government Minister, from the Prime Minister down, to this phenomenon.
Nor has there been any kind of legislative response, or funding for LGBTIQ community organisations and/or Local Governments, to increase safety to allow these events to proceed.
Indeed, in the absence of clear Commonwealth Government action (and, it must be said, lack of State and Territory Government action too), it has been left up to the LGBTIQ community itself, through initiatives such as Rainbow Community Angels, to enable events like Drag Story Time go ahead in spite of right wing extremist threats.
The fact the Commonwealth Government has been missing in action on anti-LGBTIQ prejudice is reinforced by comparing its actions over the past 12 months to religious hate speech and threats of intimidation and violence against religious minorities.
There have been repeated strong public condemnation of anti-semitism from the Prime Minister, and multiple other senior Government Ministers including the Attorney-General.
There have been repeated promises to introduce Commonwealth laws to prohibit vilification on the basis of religious belief (with these laws expected to be introduced shortly despite the Government’s simultaneous refusal to implement its broader commitment to a Religious Discrimination Bill and Sex Discrimination Act amendments to protect LGBTQ students and teachers in religious schools in the absence of agreement from the Opposition).
The Commonwealth Government has also announced, and delivered, tens of millions of dollars to faith-based organisations to enhance their and their respective communities’ safety (with the Attorney-General announcing a $40 million grant round on 17 May 2023, coincidentally the International Day Against Homophobia, Biphobia and Transphobia, or IDAHOBIT).
The LGBTIQ community has not received the same commitments, or funding, from the Government despite facing similar challenges in terms of hate speech, threats, intimidation and violence.
What the Commonwealth Government should be doing to address anti-LGBTIQ extremism
There are a range of actions which, in my view, the Commonwealth Government should be undertaking to address increasing right wing anti-LGBTIQ extremism.
This includes measures which not only respond to the visible growth of this hatred over the past 12 months, but would also ideally help to prevent and reduce anti-LGBTIQ prejudice in the community generally, thereby removing what appears to be fertile ground for right wing extremists to recruit on and organise around.
These measures include:
Clear public condemnation of right wing anti-LGBTIQ extremism
The basic starting point should be clear and consistent public condemnation of the anti-LGBTIQ, and especially anti-trans, extremism which has gathered pace over the past 12 months.
This should include statements from the Prime Minister, and other senior Government Ministers including the Attorney-General, and must leave no doubt that such extremism will not be tolerated.
2. Fund a national strategy countering anti-LGBTIQ prejudice
In the context of other recent domestic and international developments, the Commonwealth Government has sought to expedite a new national anti-racism strategy, in partnership with the Australian Human Rights Commission.
Anti-LGBTIQ prejudice is no less serious a threat as racism, with substantial impacts on the lives of lesbian, gay, bisexual, transgender, intersex and queer Australians. It too warrants development of a funded national strategy to help combat it, including initiatives to prevent homophobia, biphobia, transphobia and anti-intersex bigotry.
There is currently no Commonwealth protection against anti-LGBTIQ vilification under the Sex Discrimination Act 1984. Protections at state and territory level are a patchwork replete with many holes, with anti-LGBTIQ vilification prohibited in Tasmania, the ACT, Queensland and Northern Territory, while civil vilification provisions in NSW cover only gay men, lesbians and some transgender people (although Crimes Act prohibitions on inciting violence apply across the LGBTIQ community). There are no protections in Victoria, South Australia or Western Australia.
The Albanese Government has an opportunity to address these gaps by introducing nation-wide prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, based on existing vilification provisions in section 18C of the Racial Discrimination Act 1975.
This should be done at the same time as the Government implements its commitment to prohibit religious vilification, given there is little difference in the potential harm vilification causes these respective groups.
4. Fund safety initiatives for LGBTIQ community organisations and Local Governments
Similarly, the Commonwealth Government should be providing funding for initiatives to protect the safety of LGBTIQ Australians on an equivalent basis to the programs it has already delivered to faith groups.
This should include a grants program for LGBTIQ community organisations to upgrade their safety infrastructure, as well as to provide safety training to members of the LGBTIQ community to help protect us against the growing threat of right wing extremism.
The Government should also fund Local Governments to upgrade their own security settings, so that community events such as Drag Story Times can be held safely despite any threats of intimidation and violence emanating from far-right extremists.
5. Create and appoint an LGBTIQ Commissioner at the Australian Human Rights Commission
The above measures should be supported by institutional infrastructure to ensure they are delivered, and delivered in line with community expectations.
One part of this infrastructure, currently absent, is a stand-alone, dedicated Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics at the AHRC (with responsibility for these issues presently an ad hoc, part-time responsibility of the Sex Discrimination Commissioner).
The creation and appointment of an LGBTIQ Commissioner would help to ensure that addressing homophobia, biphobia, transphobia and anti-intersex bigotry is given an appropriate emphasis both within the Commission and beyond.
6. Create and appoint a Commonwealth Government LGBTIQ Advisory Committee
Another current gap in federal institutional infrastructure is the absence of any Minister with dedicated responsibility for LGBTIQ issues, and/or specific office within a central agency with the onus for co-ordinating policy and service-delivery on LGBTIQ issues.
Nor is there a national LGBTIQ Advisory Committee to help present views from the full diversity of LGBTIQ communities across the country.
While all should, in my view, be created, perhaps the most important is the advisory committee – because perhaps, had the Commonwealth Government an existing consultative mechanism, they may have already taken action to address the rise of right wing anti-LGBTIQ extremism, rather than left us feeling like we’re on our own.
Thank you in advance you your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you require clarification or additional information.
Sincerely
Alastair Lawrie
Neo-Nazis turn up to an anti-trans rally on the steps of Victorian Parliament, March 2023.
Submission re Current and emerging threats to trans and gender diverse human rights
Thank you for the opportunity to provide this submission to this important inquiry.
I do so as long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia, including as a volunteer for a number of LGBTIQ community organisations, and through my personal website www.alastairlawrie.net
While I am a cisgender gay man, I have consistently attempted to serve as an active ally for trans and gender diverse (TGD) people. This has included writing about:
Anti-discrimination and vilification laws, at Commonwealth and state and territory level, including how they protect (or in many cases fail to protect) TGD people
Birth certificate laws across Australian states and territories, and
The need for public funding, through Medicare, for gender-affirming health care.
These are the three main topics I will focus on in this submission.
Anti-discrimination and vilification laws
Australia’s anti-discrimination and vilification laws fail to adequately protect TGD people in a number of key areas, including:
Protected attributes for discrimination
While the Sex Discrimination Act 1984 (Cth) and most state and territory anti-discrimination frameworks clearly cover all sections of the TGD community against discrimination, in two jurisdictions they fall short of even this minimum standard.
NSW’s Anti-Discrimination Act 1977 only covers transgender people with binary gender identities (because of the outdated references to ‘identifying as a member of the opposite [sic] sex’ in the interpretive provision in section 38A, leaving non-binary and gender fluid people without legal protection.
While Western Australia’s Equal Opportunity Act 1984 is even narrower, only prohibiting discrimination against ‘a gender reassigned person on gender history grounds’ (section 35AB). Because of associated definitions in section 4 and section 35AA, this effectively restricts protection to transgender people with binary gender identities who have had a gender recognition certificate issued in WA (or equivalent legal recognition elsewhere).
Both the NSW Anti-Discrimination Act and WA Equal Opportunity Act must be reformed to ensure all TGD people enjoy the human right to non-discrimination.
Vilification protections
There are even larger gaps when it comes to legal prohibitions on anti-trans vilification. While Tasmania, the ACT, Northern Territory and Queensland all prohibit vilification against all TGD people, there are currently no protections against transphobic vilification under the Commonwealth Sex Discrimination Act, nor under the laws of Victoria or Western Australia (despite both State Governments having committed to doing so over several years), or South Australia.
The situation in NSW is more complex, with only transgender people with binary gender identities covered in relation to civil vilification under the Anti-Discrimination Act, while all TGD are protected by the ‘threatening or inciting violence’ offence in s93Z of the Crimes Act 1900 (NSW) (because the latter adopts the more modern terminology of ‘gender identity’).
The lack of clear, nation-wide prohibitions on anti-trans vilification is even more problematic given the rise in hate speech against TGD people, especially over 2023 and early 2024, including (but sadly not limited to) the anti-trans rally on the steps of Victorian State Parliament in March 2023 to which neo-Nazis turned up shouting at trans counter-protestors with a banner saying ‘destroy paedo freaks’.
The State Governments of Victoria, WA, SA and NSW, and especially the Commonwealth Government, must take urgent action to address this worsening national crisis.
Religious exceptions permitting discrimination against TGD people
One of the major weaknesses of anti-discrimination laws relating to LGBTQ+ Australians, including TGD people, are exceptions allowing religious organisations to engage in conduct that would otherwise be unlawful.
Over the past decade, this issue has received particular attention in relation to religious schools.
In 2024, it remains lawful for a publicly-funded religious educational institution to discriminate against TGD students under the Commonwealth Sex Discrimination Act, as well as in NSW, Western Australia and, most likely, South Australia too.
Indeed, the exceptions in NSW are so broad they apply to all ‘private educational authorities’, and there is no test that these institutions are required to satisfy before being able to mistreat TGD students – the exceptions are ‘blanket’ exclusions from the Act’s operations.
These exceptions deny the fundamental human right to education. All students should enjoy the ability to learn and to grow, free from the fear of discrimination because of who they are. That must include TGD students.
The situation for TGD teachers is even worse. Once again, they are legally permitted to be discriminated against under Commonwealth law, as well as in NSW, Western Australia, and South Australia (although schools must publish their discriminatory policies).
In Queensland a ‘Don’t Ask, Don’t Tell’ regime applies, although thankfully the Queensland Government has been consulting on legislation to remove these exceptions entirely.
Religious exceptions deny the fundamental human rights of TGD workers, including the right to non-discrimination. TGD teachers should be hired or not hired, fired or not fired, and otherwise treated in the workplace, according to their skills and experience, not their gender identity.
The Albanese Labor Government was elected in May 2022 with clear commitments to end the legally authorised mistreatment of TGD students and teachers.
However, despite referring this issue to the Australian Law Reform Commission for review in November 2022, and receiving the ALRC’s straight-forward recommendations for how LGBTQ+, including TGD, students and teachers should be protected in December 2023, the Government is now refusing to implement reforms without bipartisan agreement (an unnecessary prerequisite for legislation to pass, and an artificial barrier that will most likely result in ineffective protections – or no protections at all).
The Albanese Labor Government’s failure to act is not only a broken election promise. It is a denial of the rights of TGD Australians and will have long-term implications in poorer life outcomes for TGD people.
While the exceptions which apply in relation to religious schools have received the most scrutiny to date, the special privileges that allow other publicly-funded religious organisations to discriminate, across health, disability, aged care (noting that amendments to the Sex Discrimination Act in 2013 protected LGBTQ+ people accessing aged care services but not the workers of those same faith-based providers), housing and other essential community services must also be removed.
Finally, I note many anti-discrimination laws include other exceptions, including in relation to the participation of TGD people in sport, but defer to the views of TGD organisations on these provisions.
TGD birth certificate laws
Having access to identity documents that accurately reflect who you are is a fundamental human right, but one that is currently denied to far too many TGD people in Australia.
This is especially so in NSW which, as a consequence of provisions of the Births, Deaths and Marriages Registration Act 1995, remains the only jurisdiction in Australia that still requires transgender people to have genital surgery in order to update their birth certificate to reflect their gender identity.
This is surgery many TGD do not wish to undertake – including because it is not necessary for them to live their daily lives according to their gender identity. For many who do wish to access gender-affirming surgery, they simply cannot afford the prohibitive costs (which will be addressed in more detail in the third and final section of this submission, below).
Given that this genital surgery is also sterilising, imposing this barrier in order to legally update birth certificates can justifiably be seen as a denial of the right to reproductive freedom, including the human right to found a family.
Finally, the NSW approach is also deficient in that it currently only allows binary sex or gender markers (male or female), with no legislated option to record non-binary and other gender diverse identities.
Both of these issues – the unnecessary requirement for genital surgery, and the lack of options to record gender beyond male or female – would be resolved through passage of the Equality Legislation Amendment (LGBTIQA+) Bill 2023, introduced by Alex Greenwich MP and currently being considered by a NSW Parliamentary Inquiry (although the NSW Government has still yet to indicate their position on this long overdue reform).
Unfortunately, the approach in Western Australia is only slightly better, and that is primarily because of the intervention of the High Court, rather than the provisions of Gender Reassignment Act 2000 (WA) itself.
Thanks to the decision in AB v Western Australia; AH v Western Australia [2011] HCA 42, genital surgery is no longer required in Western Australia.
However, some form of physical medical intervention, such as top hormone treatment or top surgery, is still deemed necessary, and once again, there are no legislated options to record gender beyond male or female.
Disappointingly, while the WA Government has committed to replace with Gender Reassignment Act 2000 with more contemporary legislation, including allowing options beyond male and female, and abolishing the Gender Reassignment Board, they have not chosen to adopt best practice frameworks, such as those that exist in Tasmania and, following recent amendments, the ACT.
Instead, the WA Government’s announcements have indicated they will be following the flawed approach of South Australia and the Northern Territory, both of which still require a TGD person to obtain approval from a medical professional, such as a psychologist or counsellor, before a new birth certificate can be issued.
This is unnecessary and inappropriate ‘medical gate-keeping’ of the legal rights of TGD people, including their right to have identity documents matching their lived reality.
It also perpetuates the incorrect assumption that being transgender or gender diverse is a form of mental illness, rather than simply part of the beautiful diversity of being human.
Requiring ‘sign-off’ from psychologists or counsellors places additional financial hurdles in the way of TGD people who simply want identity documents that actually reflect their identity.
Above all, identity documents are exactly that, intended to record a person’s identity – and TGD people are TGD irrespective of whether a psychologist or counsellor supports them.
Instead, a full self-identification model should be adopted, along similar lines to the legislation in Tasmania and the ACT. I urge the Western Australian Government to reconsider their decision to introduce laws that fall well short of this standard.
And for the South Australian and Northern Territory Governments to reform their own laws to ensure TGD people in those jurisdictions enjoy straight-forward access to new birth certificates too.
Medicare funding for gender-affirming health care
While much is written about the need to reform the laws which apply to TGD people seeking accurate birth certificates, far less attention is often paid to a much broader, and arguably even more important, problem – that the cost of accessing gender-affirming health care is prohibitive, and out of reach for many TGD people in Australia.
These costs apply not just to various kinds of surgery (including ‘top’ and ‘bottom’ surgeries, as well as, for some TGD people, facial surgeries), but also to other health services, including hormone treatments.
These expenses can mean the difference between being able to affirm one’s gender identity or not – but are so high that they can effectively push some trans people into poverty. While for others, they are completely unaffordable.
For example, in March 2018, the ABC reported that: ‘There’s a massive price tag on being transgender in Australia. For some, the cost of surgery and treatment for gender dysphoria will crack $100,000’ [noting there has been significant inflation in health care in the six years since then, meaning contemporary figures may be even higher].
LGBTIQ policy expert Liam Elphick noted in The Conversation in March 2019 that: ‘Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.’
However, gender-affirming health care is not cosmetic, but essential.
ACON’s 2019 ‘A blueprint for improving the health and wellbeing of the trans& gender diverse community in NSW’ raised the issue of TGD out-of-pocket medical costs, noting on page 20 that:
‘For medical services to be covered by the public health system in Australia, they must be medically necessary, clinically effective and cost effective. For many trans and gender diverse people, the ability to alter their body is part of affirming their gender and can be an important treatment if they are experiencing distress or unease from being misgendered and/or feeling incongruence between their gender identity and their body.’
‘Research has demonstrated that access to gender-affirming care has led to reduced mental health risks and improved quality of life for trans and gender diverse people.’
These factors – better mental health and quality of life outcomes – are obviously important reasons why trans out-of-pocket medical costs must be reduced. Or better still, eliminated entirely.
There is an even more fundamental argument: TGD people have a human right to live their affirmed gender identity, and that right is just as important as health, education and housing.
Sadly, as with anti-discrimination and vilification laws, and access to birth certificates reflecting their identity, the rights of TGD Australians are being denied in this area too.
As a consequence, for some TGD people, whether they are able to afford gender-affirming health care turns on whether they are able to run a successful ‘gofundme’ campaign (or other fundraising initiative).
Access to essential health care should never be determined in this lottery-like manner.
Instead, it’s time for the Commonwealth Government to ‘go fund them’, by ensuring all forms of gender-affirming health care are fully covered by Medicare, so that all TGD people who want to undertake surgery, and receive other services, are able, irrespective of their individual financial circumstances.
Thank you in advance for your consideration of the issues raised in this submission. Please do not hesitate to contact me, at the details provided, should you require further information.
Sincerely
Alastair Lawrie
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Today is the International Day Against LGBTIQA+ Discrimination.
May 17 marks the day in 1990 homosexuality was removed from the World Health Organisation Classification of Diseases, with IDAHOBIT now an annual event drawing attention to the denial of fundamental human rights of lesbian, gay, bisexual, transgender, intersex, queer and asexual people around the world, including Australia.
Ordinarily, I would use IDAHOBIT to optimistically highlight issues of anti-LGBTIQ discrimination that can and must be addressed by Commonwealth, State and Territory Governments.
But I must admit I’m running as low on optimism at the moment as I am energy. On IDAHOBIT 2024, I just feel tired.
I’m tired of leaders who promise to protect LGBTQ students in religious schools against discrimination, but then fail to follow through on their commitments.
In the past, this statement applied to former Prime Minister Scott Morrison, who promised to remove the exceptions in the Commonwealth Sex Discrimination Act1984 that allow religious schools to mistreat students because of their sexual orientation or gender identity in October 2018 – before spending the following three-and-a-half years running away from that commitment.
Now it applies to Prime Minister Anthony Albanese, who promised to protect both LGBTQ students and teachers ahead of the May 2022 federal election but, having received an Australian Law Reform Commission report outlining exactly how to do this, now refuses to introduce legislation to make this a reality without the support of Opposition Leader Peter Dutton.
Which is both an entirely unnecessary requirement – because the Parliamentary numbers exist to pass these reforms without the Liberal and National Parties – and will almost inevitably lead to an outcome which doesn’t actually end this anti-LGBTQ discrimination, either because the Coalition won’t agree to any changes, or any changes that are agreed simply allow this mistreatment to continue in other ways.
I’m tired of states that have allowed their own anti-discrimination laws to atrophy, through decades of neglect, such that they do not provide adequate protection against discrimination to the LGBTIQ community.
I am of course thinking of the successive governments in NSW who failed to update the Anti-Discrimination Act 1977, with the consequence that, in 2024, it still does not protect bisexual, non-binary or intersex people. Or LGBTQ students or teachers. And plenty of others too.
At least the current Minns Labor Government has referred this legislation to the NSW Law Reform Commission for comprehensive review. Although it would be even better if, in the interim, they supported the Equality Legislation Amendment (LGBTIQA+) Bill 2023, currently being considered by a parliamentary committee, which could address many of these shortcomings right now.
I’m even more thinking of the WA Labor Government who, despite promising to modernise the Equal Opportunity Act 1984 after their own Law Reform Commission inquiry process, have failed to use their parliamentary majorities in both houses to do anything about it, squandering what might be a once-in-a-lifetime opportunity to finally bring WA anti-discrimination laws into the 21st century.
I’m tired of the absence of action on birth certificates, particularly in NSW, which remains the only place in Australia that still requires trans and gender diverse people to undergo sterilising genital surgery in order to update their identity documents. And which does not provide legislative options to recognise sex or gender markers beyond male or female either.
Although, as with anti-discrimination reform, this could be solved quickly and easily through the rapid passage of the Equality Bill’s amendments to the Births, Deaths and Marriages Registration Act 1995.
I’m tired of the lack of Medicare funding for gender-affirming healthcare, too. While not all trans and gender diverse people seek access to such services, including but not limited to surgery, many do – but the significant out-of-pocket costs involved place them out-of-reach for far-too-many trans Australians.
These are vital, in many instances literally life-saving, healthcare services. They are the opposite of ‘elective’, and must be properly, publicly, funded, to ensure all trans and gender diverse people who want to can access them.
I’m tired of the glacial pace of change to protect children born with variations of sex characteristics (aka intersex kids) from non-consenting surgeries and other harmful medical interventions.
It’s been more than a decade since the Commonwealth Senate first investigated these gross violations of human rights – the worst violations against any part of the Australian LGBTIQ community – and yet only one jurisdiction has passed any kind of law to limit them (the ACT, which legislated reforms in 2023, although I understand Victoria is also moving, slowly, toward its own scheme).
Intersex people deserve to control what happens to their bodies.
I’m tired of right-wing, and far right, politicians at all levels using the LGBTIQ community as convenient punching bags for their own self-promotional purposes. The latest notorious example being Cumberland City Councillor Steve Christou, with his thankfully short-lived ban on books depicting same-sex parents from council libraries.
But, really, we could be talking about any number of people who use anti-LGBTIQ platforms to seek, or retain, public office, from Mark Latham to Katherine Deves, and Alex Antic to Claire Chandler.
I’m tired of the far right extremist threat against LGBTIQ people not being taken seriously by Government, and especially by the Commonwealth Government.
In the wake of the downright disturbing sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament in March 2023, the Albanese Government passed urgent legislation banning Nazi symbols, and salutes, but so far have still not introduced amendments to prohibit anti-LGBTIQ vilification under federal law.
Nor has there been clear Commonwealth condemnation of the wave of threats of violence and intimidation against Drag Story Times at community libraries around the country.
I’m tired of politicians who turn up to march with us in events like the Sydney Gay & Lesbian Mardi Gras parade, but don’t turn up to vote for us on the floors of our parliaments.
And who post short statements supporting LGBTIQ people on social media on days like today, but won’t say anything when it really matters, when our community is under attack.
I’m tired of some people in the LGBTIQ community who fought for the right to marry for themselves, but then turned away from the ongoing battles for the rights of others within our own community, including trans and gender diverse, and intersex, people.
And especially of fringe groups like the LGB Alliance who actively seek to deny human rights to trans and gender diverse people, employing the same arguments, and sometimes aligned with the same groups, that were used to deny their own.
And I’m tired of the amount of time, energy and emotional resources that we must consistently spend defending existing rights from baseless attack, simply stopping the situation from getting worse, rather than making progress on the many, many issues where change is still desperately needed.
I acknowledge that this list is at least partly the product of my own choice to be an advocate for LGBTIQ equality, both professionally and personally.
A choice that means, to some extent, nearly every day for me is a day standing up against LGBTIQ discrimination.
And so on this International Day Against LGBTIQA+ Discrimination I’m choosing to do something else.
I’m logging off, and spending the day with the man who I love, doing many of the simple but beautiful things we enjoy together.
In other words, we’re making sure on this IDAHOBIT we’re living the gayest, and most fabulous, lives possible.
The struggle for LGBTIQ equality will continue tomorrow. And many, many tomorrows after that.
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On April 16 2024, I was invited to give the keynote address to launch Issue 47(1) of the UNSW Law Journal.
I was asked to talk about the Issue’s theme – ‘Decoding Life, Freedoms and Governance’ – with reference to at least some of the Issue’s articles (which are open-source, and can be found here), as well as my background as a long-term LGBTIQ advocate and professional experience in public policy.
The following is what I came up with (the two sections in square brackets were omitted on the night to keep to time, but are included here for completeness). Thanks for reading, I hope you find it interesting.
‘Decoding Life, Freedoms and Governance’
Thank you for that generous introduction. And of course for the invitation to speak here tonight.
Thank you also for the broad theme of Issue 47(1) to address in my remarks – ‘Decoding Life, Freedoms and Governance’ – which took me several days to ‘decode’.
I must confess I don’t feel particularly qualified to talk in detail on the topic of ‘decoding life’ – which is something most people do in consultation with their therapist.
I do, however, have plenty to say on the twin, and intertwining, topics of ‘decoding freedoms’ and ‘decoding governance’, at least partly based on my lived experience.
That’s because, as a 45-year-old gay man, it has been impossible to avoid thinking about the meaning of freedom – of what I have been free to do, or not do, or protected from, or not, at different stages of my life. And what others, including religious organisations, have been legally free to do to me.
Or to deny the role of governance, and governments – state and federal – in determining the extent of those ‘freedoms’, far-too-often without consultation with or even consideration of those most affected by their decisions.
Indeed, some of the key events in my life overlap with milestones in the history of LGBTIQ rights in Australia.
I was born in July 1978, just weeks after NSW Police arrested 53 people for participating in the first Sydney Gay Mardi Gras parade – an indication of how unwelcoming both the law, and its enforcement, were for LGBTIQ people here.
Although I grew up in rural Joh Bjelke-Petersen-era Queensland, which was undoubtedly worse.
Queensland did not decriminalise male homosexuality between adults until January 1991 – but even then it introduced a differing age of consent for anal intercourse (18, compared to 16 for other sexual acts), a discrepancy that was not abolished until 2016, and with charges and convictions arising because of this inequality still not included in their historical homosexual conviction expungement scheme today.
January 1991 was also personally significant for a couple of reasons. Just one week after decriminalisation, I found myself travelling 800 kilometres from the family farm to a religious boarding school in Brisbane. Then, on my first day there, I found I was same-gender attracted too.
Audience members will be unsurprised to learn religious schools were lawfully permitted to discriminate against LGBTQ students (and teachers) in Queensland at that time. Loopholes my school took full advantage of over the following five years.
While I will spare you the details tonight, it would be an understatement to describe growing up gay at a religious boarding school which enjoyed special privileges to be prejudiced, as horrific. [You can read more about my experiences, here].
Fast forward to 2008, and to another coincidence. I was employed as a ministerial adviser to the Rudd Labor Government. At the same time as I met, and began my first de facto relationship with, the man who is still my partner today, I was provided internal on the details of Commonwealth same-gender de facto relationship recognition.
Some younger members of the crowd may not be aware this recognition did not exist before 1 July 2009.
Then, in January 2010, my partner Steve and I got engaged – meaning I would spend the remainder of my time working for a Government which did not support the legal equality of my own relationship.
Despite departing Canberra in mid-2012, I continued to advocate for the introduction of Commonwealth anti-discrimination protections for LGBTIQ people, something that was finally achieved in June 2013 – just 10 years ago, but almost four decades after race discrimination was prohibited federally, and more than three decades after homosexual discrimination protections were introduced in NSW (something we will return to later).
The subsequent four years were predictably dominated by the subject of marriage equality – not only campaigning for it to be passed, but also debating the manner of its passage, from conscience votes through to the push for the ALP to hold a binding vote.
And from successful LGBTIQ community efforts to stop the Turnbull Coalition Government’s plebiscite, to failed attempts to prevent their postal survey – in another coincidence, I started at the Public Interest Advocacy Centre just a couple of months before we helped one of the unsuccessful High Court challenges to block what may have technically been a statistical survey but was also an anti-democratic anomaly.
I note this challenge fell just prior to the relevant time period for the article ‘How does the High Court interpret the Constitution? A Qualitative Analysis between 2019-21’ – it would have been interesting to see how Tan, Paige, Hrambanis and Green characterised that Wilkie decision.
In any event, thank you for indulging me in sharing a little of my back-story. Which I think reinforces that to be a gay man – or any member of the LGBTIQ community – in the final two decades of the 20thcentury, and the first few of the 21st, is to have been engaged in a constant state of contestation of our legal rights.
Our lives have been made inherently political, with participation in the political process rendered essential – even if ‘the State’ has frequently been our oppressor, or at least acted on the oppressor’s side.
That background also helps to explain why I am an LGBTIQ advocate today.
Why I chose ‘sexuality-related anti-discrimination law in practice’ as the topic of my law honours paper at ANU.
Why I’ve spent much of the past two decades volunteering for a range of LGBTIQ community organisations, including both the Victorian, and NSW, Gay & Lesbian Rights Lobbies.
And why I have ended up at PIAC, where over the past seven years I have been fortunate enough to work not just on marriage equality, but also on advocacy against the Morrison Government’s Religious Discrimination Bills, which presented a grave threat to the rights of LGBTQ people (as well as women, people with disability and even people of minority faiths).
Above all, I’ve focused on efforts to secure anti-discrimination protections for LGBTQ students and teachers in religious schools, under both state and federal law. Which is obviously a full-circle moment given where I started!
I intend to use the remainder of this speech to talk about what LGBTIQ rights look like in NSW today, across four key issues: conversion practices; birth certificates; medical interventions on intersex children; and anti-discrimination protections.
Now, had I given this address a month ago, I would have been able to make the pithy observation that we live in the worst jurisdiction in Australia for LGBTIQ laws.
Instead, following passage of the Conversion Practices Ban Act in late March, we’ve moved all the way up to equal worst, with Western Australia (actually, that’s perhaps uncharitable – if we’re being generous, we might even be able to say we are now second-worst… just).
From an LGBTIQ advocate’s perspective, this legislation is both welcome and long overdue.
It will legally prohibit conversion practices, defined in section 3 as:
‘a practice, treatment or sustained effort that is (a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity.’
This is needed because, as described in the opening article in issue 47(1) – Martin Clark and Brendan Gogarty’s excellent ‘Searching the Reins and Hearts: Conversion Practices Reforms in Australia’:
Quote
‘[S]cientific and clinical evidence has consistently shown that there is no evidence that conversion practices are ‘effective’ in their capacity to effect a change or suppression of sexual orientation or gender identity. There is also consistent evidence that conversion practices carry clear risks of harmful effects on those subjected to them, including physical and psychological harms, such as increased suicidality, self-harm, post-traumatic stress disorders, anxiety and depression, feelings of alienation, loneliness and exclusion, sexual dysfunction, substance abuse, internalised homophobia and feelings of failure, and reluctance to seek medical treatment.’
Endquote
Disappointingly to Clark and Gogarty, who argue against a carceral approach, the new Act implements both a criminal offence, and civil complaints scheme, for conversion practices.
Although I must respectfully disagree with them – given the seriousness of the harms they outline, I would suggest criminal penalties for the worst examples are appropriate.
Either way, the passage of this law is a testament to the advocacy of conversion practices survivors like Anthony Venn-Brown, Chris Csabs and Nathan Despott, over many decades.
But I would not be honouring their work without also highlighting their primary criticism of the law as passed – that, unlike the ‘best practice’ scheme in Victoria, the NSW law does not provide a formal mechanism for third-party complaints to Anti-Discrimination NSW.
As it stands, the only complaints that can be made are from survivors directly, or via representative complaints with the consent of each of those survivors.
This framework not only reinforces one of the limitations of anti-discrimination law more broadly – that the onus for seeking redress falls on the people who have been mistreated.
It ignores the particular characteristics of conversion practices, where the people undergoing them appear to do so ‘voluntarily’ (despite what, as Martin and Gogarty note, is the ‘impossibility of genuine consent’ in these circumstances), and are therefore unlikely to bring, or consent to, complaints until after they have extricated themselves from them. If they first survive them.
The lack of third-party complaints is a major gap in this scheme that must be rectified.
The Act also includes a range of ‘carve-outs’, providing that activities like ‘clinically appropriate’ healthcare, ‘stating what relevant religious teachings are or what a religion says about a specific topic’, and ‘parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children’, do not constitute conversion practices.
Despite this, a number of conservative religious organisations campaigned against the law in its totality, alleging it constituted an attack on ‘religious freedom’.
I must, perhaps a little less respectfully this time, disagree with them too. There is no philosophical justification for the right to inflict serious psychological harm, on children and young people, in the (misused) name of religious freedom.
Even in the case of adults – where there is at least a possible argument for the freedom to engage in practices which may result in self-harm – I would submit there is a clear justification for government regulation.
This is because of what Clark and Gogarty describe as the role played by ‘conversion ideology’ as a precursor to ‘conversion practices’:
Quote
‘Survivor-advocates have consistently contended that ‘conversion ideology’ – the worldview that it is possible and necessary for LGBTQA+ people to change their sexual orientation and gender identity, and that being LGBTQA+ is due to trauma, spiritual brokenness, and can be fixed by prayer – is central to defining and understanding conversion practices’,
because
‘the inculcation of these beliefs in congregants is important for smoothing the path for them taking part in actual conversion practices.’
Endquote
In other words, perpetrators of conversion practices first convince healthy people to believe their sexual orientation or gender identity is somehow ‘sick’ (when it is not), before offering a ‘cure’ that actually causes serious psychological harm.
The law should not protect the ‘freedom’ to engage in this abuse.
Before I conclude on this subject, I feel compelled to express my condemnation of the role played by the Liberal/National Coalition during parliamentary consideration of this law.
And especially of their vote in favour of minor-party amendments to remove ‘gender identity’ from any protection under the Conversion Practices Ban Act.
In other words, the NSW Opposition voted for the continued legality of ‘practices, treatments or sustained efforts’ to stop trans people, and especially trans young people, from being trans.
This was a shameful act, and one I would strongly urge them to reconsider in relation to future LGBTIQ law reform – including on the next topic we will turn to.
That is birth certificate legislation, and in particular, the regulation of access by trans and gender diverse people to identity documents reflecting who they are. Sadly, the NSW Births, Deaths and Marriages Registration Act 1995 is unequivocally the worst such law in the nation.
We are the only jurisdiction which still requires people to undergo genital surgery before being able to update their birth certificates – surgery many trans people do not wish to undertake, and of those that do, many cannot afford, because of a lack of Medicare funding.
While we are one of only two jurisdictions, alongside Western Australia, with no legislative options for sex or gender markers beyond male or female: non-binary people cannot access state-issued ID stating they are, in fact, non-binary.
These laws aren’t just an insult to the human dignity of trans and gender diverse people. The requirement for surgery, which causes sterilisation, is a denial of reproductive freedom and therefore the right to found a family.
While the inability of many trans and gender diverse people to access birth certificates reflecting who they are at all, means they are confronted by the possibility of ‘outing’ in the growing range of contemporary scenarios where ID is mandated.
Fortunately, the Equalities Legislation Amendment (LGBTIQA+) Bill 2023, introduced by the Independent Member for Sydney Alex Greenwich and currently being considered by a Parliamentary Inquiry, would address these problems, and at least bring NSW law up to the standard of Victoria and Queensland.
Although even then, and this is my personal rather than professional view, it would fall short of the ‘best practice’ approach of Tasmania, which is the only Australian state or territory to adopt a true ‘self-identification’ model for trans and gender diverse people.
Instead, the NSW law – like Victoria and Queensland – would still require a trans person, in addition to their own statutory declaration, to submit:
‘a support statement by an adult who has known the applicant for at least 12 months stating that (i) the adult believes the person is making the application in good faith, and (ii) the adult supports the person making the application…’
Given identity, including the characteristic of gender identity, is an inherently personal attribute, I do not agree the recognition of someone’s gender should be dependent on whether another person ‘supports’ it.
Looked at from another perspective, I do not concede that my sexual orientation, as a gay man, should only be acknowledged if I am able to produce a statutory declaration from another person saying they ‘support’ it.
I am who I say I am, a fact generally accepted by others. Trans and gender diverse people deserve to enjoy exactly the same respect.
Nevertheless, we (being PIAC), support the Equality Bill as a significant step forward along the long journey to LGBTIQ, and especially trans, equality. We urge both the NSW Government, and Opposition, to support it.
Turning to the third topic I flagged earlier, and in which NSW law is manifestly deficient: medical interventions on intersex children.
For audience members new to this subject, intersex people have innate sex characteristics that do not fit medical norms for female or male bodies. It is estimated somewhere up to 1.7% of children are born with these variations of sex characteristics.
Tragically, the medical system’s response to many intersex children is to perform so-called ‘normalising’ surgeries on them.
These interventions are frequently not clinically necessary for the child’s health, but instead performed for non-therapeutic or ‘psycho-social’ reasons, including to assuage the disappointment of parents who expected their child’s body to conform to societal norms, or to ‘assist’ the child to fulfil gendered stereotypes in the future.
For those curious about what that means in practice, I suggest reading the 2016 Family Court case of Re: Carla, which ruled that a family can consent to the sterilisation of their 5-year-old child without court approval, without clear medical necessity and at least partly motivated by gendered expectations, including attitudes to that young child’s potential future sexuality. It was then, and remains today, a genuinely heart-breaking decision.
These unnecessary surgeries are obviously done without the consent of the person affected by them, who should be free to agree, or not agree, to them when they have at least reached Gillick competency and understand what is involved.
In my view, medical interventions on intersex children, which are a fundamental denial of bodily autonomy, are one of the gravest human rights violations happening in Australia today – not just in relation to the LGBTIQ community, but across society.
There have been multiple public inquiries recommending these practices be ended, including the 2013 Senate ‘Inquiry into the involuntary or coerced sterilisation of intersex people in Australia’, and the Australian Human Rights Commission’s 2021 report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics.’
Sadly, however, only one Australian jurisdiction has so far passed legislation to prohibit these surgeries: the ACT. While I understand Victoria may be close to finalising its own laws.
In contrast, there is no NSW Government commitment to introducing equivalent laws here, nor was it included in Mr Greenwich’s Equality Bill.
This is a gross failure of governments, in NSW and elsewhere, to protect the rights of the most vulnerable.
It is unsurprising I had this issue front-of-mind while reading the article ‘Out-of-Home Care, Contact Orders and Infant Mental Health: Recognising a Unique Developmental Stage in Law, Policy and Practice’ by Rachel Gregory-Wilson, Elizabeth Handsley, Liesel Spencer and Toby Raeburn, including their observation that:
Quote
‘Infancy is, therefore, a special and critically important stage of human development, and infants as a class of persons require special recognition and safeguards, including under child protection law. Infants are not little children, just as children are not little adults; they need different and unique exposures in their environments to facilitate optimum physical growth and emotional development’.
Endquote
While they made this observation in a different context, I think it reasonable to apply these principles to intersex children, who deserve legislative safeguards for their bodily autonomy, and who should be allowed to grow and develop free from unnecessary medical interventions to try to change their bodies into what society expects them to be.
Let intersex kids be free from surgeries performed according to the wants of others, rather than their own needs – and only performed following their own timeframes, if they so consent.
[One final point before moving on – while the circumstances, and associated rights, of trans young people, and intersex children, are quite distinct, it is depressing to observe the intellectual inconsistency of those who oppose the rights of both.
For example, Liberal Senator Alex Antic’s Childhood Gender Transition Prohibition Bill 2023, currently before Commonwealth Parliament, seeks to ban access by trans and gender diverse young people to gender-affirming health care, even puberty blockers and even where they are Gillick competent.
While simultaneously providing a specific carve-out to allow non-consenting medical interventions to continue to be performed on intersex children.
According to Antic, there should be no gender-affirming health care for trans kids who want it and who are able to consent. But no protection for intersex kids from harmful surgeries that are not clinically necessary and where they are in no position to consent.
Trans and intersex kids lose either way].
Turning to the final topic of my speech – anti-discrimination coverage – once again NSW has the worst laws in the country. Nowhere is this more apparent than in the protections the Anti-Discrimination Act 1977 offers, or more accurately fails to offer, LGBTIQ people.
It wasn’t always this way. In fact, NSW was the first Australian jurisdiction to protect lesbians and gay men against discrimination, in late 1982. Incidentally, this was before the decriminalisation of homosexuality in mid-1984, meaning there was an 18-month period during which gay men were criminals but legally could not be denied housing.
But the lack of subsequent reform, especially over the past 28 years, has allowed this law to atrophy.
We are now the only place nation-wide which does not protect bisexual people against discrimination. And one of two, with Western Australia, that does not protect non-binary and intersex people.
The provisions allowing discrimination by religious schools are the broadest in Australia too.
Indeed, they are so broad they apply to all ‘private educational authorities’, not just religious schools. And they offer complete or ‘blanket’ privileges to discriminate – unlike all other jurisdictions, there is no test which NSW schools must satisfy before being permitted to discriminate. The Act simply does not apply to them.
These serious flaws are just some of the reasons PIAC has made comprehensive anti-discrimination law reform a priority, including through our August 2021 report ‘Leader to Laggard: The case for modernising the NSW Anti-Discrimination Act’.
We were obviously pleased NSW Labor listened to that report and made comprehensive review of the ADA an election commitment. And we have welcomed, participated in and will continue to participate in the current NSW Law Reform Commission inquiry into this broken and outdated law.
But, as people discovered at the start of the century – when the Law Reform Commission completed its last review of this legislation, with its report then gathering dust rather than being implemented – an inquiry is meaningless if nothing subsequently changes.
We will continue to advocate to the Minns Labor Government until we finally have an Anti-Discrimination Act fit for the 21st century, one offering genuine protection against discrimination for all communities, including LGBTIQ people.
Speaking of Law Reform Commission reports at risk of gathering dust, I cannot discuss anti-discrimination law reform tonight without also addressing the current situation federally.
[Before we get into those details, however, and on indulgence, I might take this opportunity to vent the frustrations of an advocate for protecting LGBTQ students in religious schools who regularly comes up against the intellectually disingenuous, and sometimes downright dishonest, arguments of those opposed to reform.
I speak of some conservative religious schools, and their representative bodies, who simultaneously claim that religious schools do not discriminate against lesbian, gay, bisexual and trans students – but that under no circumstances can their legal privileges to do so ever be repealed.
They can never satisfactorily answer why that should be the case.
Until you realise it is because these religious schools do in fact discriminate against queer kids – they just call it something else.
Which is how you end up with the anti-LGBTQ, and especially anti-trans, student enrolment contract, proposed by Citipointe Christian College in Brisbane in 2022.
Or the situation in late 2023, when a Sydney Catholic school rejected a female student’s request to bring their same-gender partner to their formal (with it later becoming apparent this was policy across that entire Catholic school network).
Indeed, Catholic schools seem to be experts in this special kind of hypocrisy – claiming not to discriminate, while doing exactly that – as can be seen in the 2023 Sydney Catholic Schools’ ‘Gender Dysphoria Policy’ – a 6-page guide that only ever refers to students with ‘gender dysphoria’, never once acknowledging some students are trans.
I would submit it is fundamentally discriminatory to refuse to acknowledge who a trans child is.
It is almost refreshing to witness the comparative honesty of an organisation like the Presbyterian Church of Australia, who have publicly stated gay students cannot hold leadership positions within their schools because they are unable to ‘model Christian living’.
Almost – until you remember they are unashamedly, and unrepentantly, saying they will actively mistreat young people solely because of an intrinsic attribute.
That is nothing more than bullying, pure and simple. There should be no place for it in places of learning.
Anyway, thanks again for your forbearance.]
As audience members are aware, this issue has been ongoing for several years – since late 2018, when both the then-Morrison Government, and then-Shorten Opposition, promised to protect LGBTQ students. With Labor going further in promising to protect LGBTQ teachers too.
Albanese took these commitments to the May 2022 election, with Attorney-General Mark Dreyfus referring the question of how they should be implemented to the Australian Law Reform Commission in November that year.
The ALRC handed its report to Dreyfus in December. They proposed straight-forward amendments, to the Sex Discrimination Act 1984, and Fair Work Act 2009, to reflect the following two principles:
That LGBTQ young people should enjoy the freedom to learn and to grow, without fear of discrimination on the basis of who they are, and
That LGBTQ teachers should be employed on the basis of their skills and experience, rather than their sexual orientation and gender identity.
We hoped the privileges for prejudice enjoyed by religious schools might finally end.
But, when the Government released the ALRC report in March, those hopes were immediately dashed – because Prime Minister Albanese indicated no legislation would even be introduced to Parliament without bipartisan support from the now-Dutton Opposition. Effectively abdicating responsibility for his own election promises to the parties he had defeated.
Remember, not only did the Coalition do nothing to implement Morrison’s 2018 promise to protect LGBTQ kids, they withdrew their own Religious Discrimination Bills from Senate consideration because of amendments to prohibit discrimination against trans students.
Just today, Shadow Attorney-General Michaelia Cash has written an opinion piece not just opposing reforms to the Sex Discrimination Act, but also backing calls by religious schools for ‘positive rights’ to discriminate under federal law, with the consequence of overriding protections for LGBTQ teachers, and even students, in states and territories that have progressive laws.
It was abundantly clear to observers when Mr Albanese announced his ‘bipartisanship’ push, and is undeniable now, there are only two possible outcomes:
There is no agreement, and therefore no protection for LGBTQ students and teachers
There is agreement – but any Bill supported by the Coalition will not offer genuine protection for LGBTQ students and teachers.
Either way, LGBTQ Australians lose again.
It is hard not to share the sentiments, if not the choice of language, of religious school discrimination survivor James Elliot-Watson, when he described the impasse thus:
Quote
‘MPs are paid in excess of $200,000 so everybody should do their fucking job.
And I think that’s especially true for the leader of the government and my Prime Minister.
The purpose of parliament is to enact laws that ensure the safety, integrity and protection of… Australian citizens and that’s what this is about.
It needs to protect vulnerable children from legal discrimination practices that religious institutions are allowed to engage by chang[ing] the law.
Let’s get it done.’
Endquote
If Albanese doesn’t ‘get it done’ this term, it will be no less a failure of governance, and governments, to realise the basic freedoms of LGBTIQ Australians as the failure to achieve marriage equality over many years.
Indeed, there are many similarities between these two issues.
Both were reforms supported by a large majority of the Australian community.
Both could be delivered with legislative ease, following well-established precedents (in the case of marriage equality, overseas examples; in anti-discrimination law, the successful operation of state and territory laws).
Both issues had politicians who claimed to support change, but were recalcitrant in delivering it.
Significantly, both marriage equality and anti-discrimination reform have seen Prime Ministers impose artificial barriers hindering change – in the former, an unnecessary plebiscite-cum-postal survey; in the latter, the unnecessary need for bipartisan support.
With the result that on both issues LGBTIQ Australians are made to wait far too long for positive change.
Which is the most important point. It is LGBTIQ Australians who suffer real-world harm because of political intransigence.
In marriage equality, we remember Peter ‘Bon’ Bonsall-Boone and Peter De Waal, who were together for 50 years, and, in the face of Bon’s declining health, desperately pleaded for Malcolm Turnbull to introduce marriage equality so they could finally wed.
Bon died 6 months before it was passed.
In relation to LGBTQ students, I think about the person whose story we will never get to hear – because the mistreatment they experience causes them to prematurely end their life.
I say that with confidence – because it was nearly my story.
The horrific discrimination I suffered at the hands of my religious boarding school, which I mentioned earlier, caused me to experience suicide ideation from the second term of year 8, through the final term of Year 12. And beyond.
I am, in many respects, very lucky to still be here.
But I am also full of resolve. Because that is no way for a child to learn, or to grow up.
And so I can state with equal confidence that I, and PIAC, will continue to advocate until no child has to endure the same.
As I come to the end of tonight’s speech, I’m tempted to apologise for the ‘heaviness’ of some of the subjects I’ve spoken about, including the personal impacts of anti-LGBTIQ prejudice.
It is an ‘occupational hazard’ of being an advocate, and especially one who focuses on policy and law reform, to be constantly critical, to highlight where the law is deficient, and the terrible outcomes of those shortcomings.
I do not intend to convey the impression there has been no positive law reform in my lifetime (or since that very first Mardi Gras) – not just on conversion practices, but also decriminalisation, de facto and rainbow family rights, and in many other areas.
Nor is the plight of LGBTQ people in religious schools intractable. I am reliably informed my own boarding school is now welcoming of same-gender attracted and gender diverse students, a product of anti-discrimination protections for students that have existed in Queensland for twenty years.
But I do mean to impart the understanding that the struggle for the full realisation of LGBTIQ human rights and freedoms in Australia is far from over, and that we will never reach that end-point without the concerted efforts of the community, both LGBTIQ and non-LGBTIQ alike.
I welcome those present tonight as fellow travellers on the long journey ahead.
Congratulations on Issue 47(1) of the UNSW Law Journal to Jessie Liu, your editorial team and to all of the authors published. It is truly impressive in its breadth, and depth, of scholarship.
And thank you for listening to my remarks.
[The video of this event has been published here. My speech begins at the 20-minute mark].
Photo credit: UNSW Law Journal
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Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).
But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.
Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics
The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.
Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.
This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.
However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.
October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.
That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.
2. Reforming trans birth certificate laws in NSW, Queensland and WA
It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.
As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.
The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.
The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.
Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.
While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.
There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.
As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.
A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.
Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.
There are signs of movement in at least some of those jurisdictions:
The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).
Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:
‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’
Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.
At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.
Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).
4. Modernising LGBTIQ anti-discrimination laws
2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.
The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).
Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.
In (the remainder of) 2023, some of the main areas of activity will include:
Commonwealth
At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.
But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.
New South Wales
Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)
While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.
Queensland
Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.
Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.
Western Australia
Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.
South Australia
The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.
The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:
‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’
Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.
Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.
While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.
Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.
6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission
The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).
While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.
This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.
In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).
Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).
Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.
It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.
7. Supporting LGBTIQ refugees and people seeking asylum
This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.
However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).
Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).
Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).
8. Supporting the Voice to Parliament at the upcoming referendum
Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’
Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.
Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.
The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.
LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.
My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
This week saw the 100-day milestone for the new Albanese Labor Government, with lots of attention on issues like climate change, a federal Independent Commission Against Corruption, a referendum to create a constitutionally-enshrined Voice to Parliament, and of course the Jobs and Skills Summit (which I have written about here, and here).
One issue that has received comparatively little focus, but which will be considered by the Senate next week (beginning 5 September), is the possible creation of a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHCR).
I bring this to your attention because there is a strong chance the Government will reject amendments to establish this much-needed position, and this weekend is your last chance to take action to let Prime Minister Albanese and his ministerial colleagues know that you support an LGBTIQA+ Commissioner. But first, some background.
Why an LGBTIQA+ Commissioner?
The AHRC is our national anti-discrimination body, with responsibility for receiving and conciliating discrimination complaints under Commonwealth anti-discrimination laws, including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004.
The AHRC also has a number of statutory office-holders, with responsibility for publicly advocating for equality and human rights generally, including the President and the Human Rights Commissioner, as well as positions dedicated to specific attributes or communities, including the:
Aboriginal and Torres Strait Islander Social Justice Commissioner
Age Discrimination Commissioner
Children’s Commissioner
Disability Discrimination Commissioner
Race Discrimination Commissioner, and
Sex Discrimination Commissioner.
Notice who’s missing? That’s right, there’s no Commissioner with responsibility for LGBTIQA+ issues.
That’s because the 2013 amendments to the Sex Discrimination Act which added sexual orientation, gender identity and intersex status as protected attributes in that law did not create such a position. These are now the only attributes in the four main Commonwealth anti-discrimination laws not to have a Commissioner attached to them.
This omission has left LGBTIQA+ Australians at a distinct disadvantage over the past nine years, with no Commissioner with primary responsibility to speak on issues affecting our community, including during the marriage equality debate (while former Human Rights Commissioner Ed Santow did a good job, it was still only a small part of his overall role).
With ongoing attacks on LGBTIQA+ rights, including the rise of transphobia in both politics and the media, I believe it is beyond time there was a Commissioner within the AHRC empowered to advocate on our behalf, without other competing responsibilities.
The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022
The absence of an LGBTIQA+ Commissioner has become topical in the context of the Government’s Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, one of the first laws introduced since the election.
This is an important Bill, which seeks to enforce a transparent and merit-based appointment process for the statutory office-holders discussed above, both to prevent a repeat of the previous Government’s appointments which failed to meet these criteria, and to maintain the AHRC’s international accreditation as an ‘A-status’ national human rights institution (which is under threat because of those same non-transparent appointments). I support its passage.
However, introducing legislation which focuses on the appointment of Commissioners under national anti-discrimination laws obviously draws attention to the lack of an LGBTIQA+ Commissioner under those same laws.
In this context, and responding to lobbying from LGBTIQA rights group Just.Equal Australia, new Greens MP for Brisbane Stephen Bates introduced the following amendment during the Bill’s Second Reading debate in the House of Representatives in early August:
‘whilst not declining to give the bill a second reading, the House calls on the Government to establish a Human Rights Commissioner for LGBTIQA+ people within the Australian Human Rights Commission.’
In the words of Mr Bates:
‘The lack of such a commissioner is an obvious oversight that we can remedy here today. This remedy would send a strong and clear message to the LGBTIQA+ community that the era of the homophobia and transphobia from the previous government has come to an end, and signal a new approach in engaging with and protecting communities that have suffered systemic oppression for centuries. The community is not asking for anything unreasonable. There already exist commissioners for race discrimination, disability discrimination and so many others. It is vitally important that the LGBTIQA+ community have the same protection of our rights afforded to us.’
This amendment was supported by a number of cross-bench MPs. This includes MP for Kooyong, Dr Monique Ryan, who said:
‘There is a clear and urgent need for a dedicated LGBTIQA+ human rights commissioner. The absence of such diminishes the reality of discrimination against this group of individuals. The absence of such means that no-one at the AHRC has the resources or experience to advocate for and articulate the concerns of the community in legislation, policy reform or public education.’
And the MP for Goldstein Zoe Daniel, who noted:
‘Traditionally, the human rights of the LGBTQI+ community were part of the Human Rights Commissioner’s portfolio, but with that portfolio also holding religious freedom, in recent history I think there’s been a conflict between those two areas. We know that in the last parliament this led to a toxic debate that caused great distress to members of the LGBTQI+ community, particularly trans people, compounding mental health issues for children in this community particularly. For that reason, I think that direct representation is needed.’
While the MP for Warringah Zali Steggall spoke of her front-row view of the transphobic campaign of her failed Liberal Opponent during the recent election:
‘it is clear that in Warringah during the election we had very inflammatory debates about members of our community and their opportunity for inclusion. I have to say that it did raise concerns for me. There was a lack of information in the public domain about the real status of the law when it came to transgender rights and issues within the LGBTQI community. I am concerned that issues that are specific to members of the LGBTQI community do at times get overlooked or submerged into the greater responsibilities of the Sex Discrimination Commissioner, so I think there is merit in there being a more specific mandate for addressing those issues.’
Despite these, what I would describe as compelling, reasons, the Government chose to vote against the Bates amendment, ensuring its defeat.
Attorney-General Mark Dreyfus made two main arguments against the amendment in his own speech:
‘The government will not support that second reading amendment. Let’s be clear about this: the effect of the second reading amendment, if it succeeds, would be to negate the bill, to stop these important measure that are contained in this bill from coming into effect…
‘While we of course understand the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ commissioner, this bill is not the vehicle to create such a position. The government recognises that it is important to consider how best the commission can operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people. I acknowledge and commend the work that the commission already undertakes in relation to LGBTIQA+ rights, which is led by the Sex Discrimination Commissioner, Kate Jenkins. There will no doubt be further discussion on this proposal, as well as, I hope, discussion on other opportunities to strengthen the work of the commission in the future.’
The first argument is a matter of debate around the wording of the Bates amendment, and may or may not be correct. It is also probably not relevant to the different, substantive amendments proposed by Greens Senator David Shoebridge and to be voted on in coming days (discussed in more detail below).
However, the second argument is incredibly weak. Claiming LGBTIQA+ rights are already worked on by the Sex Discrimination Commissioner is simply not good enough, for at least two reasons. First, the Sex Discrimination Commissioner has a full-time role of their own, with plenty to focus on in terms of sexism, and sexual harassment – they, understandably, have limited capacity to simultaneously focus on anti-LGBTIQA+ discrimination.
Second, this arrangement does not seem to be working, especially when checking the LGBTI section of the AHRC website itself. Where not only are there no current projects on LGBTI issues – and haven’t been any since October 2021 – there are no news items from the past eleven months either. After all, it’s not like there are any substantive issues of LGBTIQA+ equality which still need to be addressed, or any major debates involving transphobia which have happened during that time… [sarcasm]
What is perhaps most disappointing about the Attorney’s comments is that, irrespective of the Government’s position on the specific Bates amendment, he was unwilling to make a commitment to creating an LGBTIQA+ Commissioner at all, even at some point in the future.
This disappointment was compounded two days later when the Government and Opposition united to defeat a Greens motion in the Senate to at least hold an inquiry into the Bill, to allow for consultation with the LGBTIQA+ community about the need to create a Commissioner within the AHRC.
All hope is not lost
While there is no denying those two votes were setbacks, there is still a third chance for this issue to be progressed.
As mentioned above, Greens Senator for NSW David Shoebridge has introduced a more comprehensive set of amendments to the Bill, which would create an LGBTIQA+ Commissioner on exactly the same basis as the other attribute-based Commissioners. You can see the details of those amendments here.
I understand these amendments are likely to be voted on in the Senate this coming week, and potentially on Tuesday 6 September. Which means we have just days left to convince the Government, as well as cross-benchers like David Pocock, Jacqui Lambie and Tammy Tyrrell, to support these amendments.
The easiest thing you can do, right now, is to sign and then share this petition from Just.Equal Australia calling on the Government to support an LGBTIQA+ Commissioner.
If you have more time, you can also write to the Prime Minister, Attorney-General and/or other members of the Government (like your local MP or Senator), urging them to support the equal treatment of LGBTIQA+ people by establishing an AHRC Commissioner for our community.
Below is the letter I have sent this morning to Attorney-General Dreyfus.
*****
3 September 2022
The Hon Mark Dreyfus QC MP
Attorney-General
PO Box 6022
House of Representatives
Parliament House
CANBERRA ACT 2600
Dear Mr Dreyfus
Please create an LGBTIQA+ Commissioner within the Australian Human Rights Commission
I am writing to call on you to create a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHRC).
The establishment of this position is long-overdue. While there are Commissioners at the AHRC for a number of other attributes within Commonwealth anti-discrimination law, there are none with specific responsibility for advocating for LGBTIQA+ equality and human rights.
This has caused a distinct disadvantage for the LGBTIQA+ community when our rights are up for debate, including during the emergence of transphobic campaigns in politics and in the media over the past 12 months.
The creation of an LGBTIQA+ Commissioner within the AHRC would also be consistent with the 2021 ALP National Platform, which was developed ahead of the election. This included commitments that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will… strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics’ (page 64), and
‘All Australians should be able to go about their lives free from discrimination. Labor is the primary architect of the anti-discrimination law framework in Australia. We will continue to defend and enhance that framework to ensure that it is fit for purpose, accessible and promotes equality’ (page 66).
I hope you would agree that creating an LGBTIQA+ Commissioner will ‘strengthen’ and ‘enhance’ initiatives against discrimination on the basis of sexual orientation, gender identity and sex characteristics, while ‘enhancing’ the Commonwealth anti-discrimination framework.
I note that you, and therefore the Government, opposed a second reading amendment in the House of Representatives to your Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 from the Greens which called on the Government to ‘establish a Human Rights Commissioner for LGBTIQA+ people’ within the AHRC.
While one of your arguments was technical (which has hopefully been addressed by the revised, comprehensive amendments proposed by the Greens in the Senate), I am disappointed by another argument you raised, that this work is already being performed by the Sex Discrimination Commissioner.
In my opinion, the Sex Discrimination Commissioner already has a (more than) full-time role in advocating on issues of sexism, and sexual harassment. They do not have the capacity to address LGBTIQA+ discrimination as well, nor should addressing LGBTIQA+ discrimination be treated as some kind of add-on to somebody else’s role, with the consequence that our community’s issues are inevitably ignored (noting, for example, that the AHRC has no current projects on LGBTI discrimination listed on its website, and have not posted even a news item since October 2021).
Now that the Bill has progressed to the Senate, I urge you and the Albanese Labor Government to support Senator David Shoebridge’s amendments to create an LGBTIQA+ Commissioner with the same powers and responsibilities as existing office-holders within the AHRC.
In the event you continue to oppose these specific amendments, for whatever reason, I call on you to:
Commit to the Government itself creating an LGBTIQA+ Commissioner within the AHRC, and
Provide a clear timeline for when this position will be established.
Thank you in advance for considering the issues raised in this correspondence. Please do not hesitate to contact me at the details provided should you like to discuss the above.
Sincerely
Alastair Lawrie
*****
Update: I received the following reply from a Director in the Human Rights Branch of the Attorney-General’s Department:
4 October 2022
Dear Mr Lawrie
Thank you for your email of 3 September 2022 to the Attorney-General, the Hon Mark Dreyfus KC MP, regarding the creation of a LGBTIQA+ Commissioner at the Australian Human Rights Commission (the Commission). The Attorney-General has requested that the Attorney-General’s Department respond to you on his behalf.
The Government believes that all Australians are entitled to respect and dignity, the opportunity to participate in society, and receive the protection of the law regardless of their gender identity, sexual orientation and intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the grounds of gender identity, sexual orientation and intersex status in many areas of public life, including employment, education, in the provision of goods, services and facilities. The Government acknowledges the work that the Commission already undertakes in relation to LGBTIQA+ rights, led by the Sex Discrimination Commissioner, Kate Jenkins.
The Government recognises that it is important to consider how best the Commission can operate to promote and protect human rights of all members of the Australian community, including LGBTIQA+ people. The Government understands the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ Commissioner. There will no doubt be further discussion on this proposal, as well as other opportunities to strengthen the work of the Commission, in the future.
Thank you for bringing your concerns to the Attorney-General’s attention.
Yours sincerely
[Details redacted]
Commonwealth Attorney-General Mark Dreyfus QC MP.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
This included a letter to Prime Minister Albanese, Treasurer Chalmers, and seven of their ministerial colleagues, calling on them to include consideration of two matters in particular that affect LGBTIQ people in the workplace:
The absence of explicit protections for trans, gender diverse and intersex employees in the Fair Work Act 2009(Cth), and
The breadth of exceptions, in the Sex Discrimination Act 1984 (Cth) and elsewhere, allowing religious organisations to discriminate against employees on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money.
Since then, the issue of potential LGBTIQ exclusion from the Jobs and Skills Summit has been picked up by my friends at Just.Equal Australia, as well as being reported on by:
I also received the below, generic response from the Treasurer’s office, which, to be honest, did not inspire much confidence that my concerns, and the concerns of my community, were being taken seriously:
Dear Alastair,
Thank you for your email and attached correspondence about the Albanese Government’s Jobs and Skills Summit, which is scheduled to held over the 1st and 2nd of September.
The Jobs and Skills Summit will bring together around 100 representatives including from unions, employers, civil society and governments, to address our shared economic challenges.
The outcomes of the Summit will inform the Employment White Paper, which will be a shared vision and comprehensive blueprint for the future of Australia’s labour market.
Although Summit attendance will be limited and invite only, Treasury will be opening a submission process to collect insights and perspectives from the wider community later in 2022.
Again, thanks for taking the time to share your thoughts and views on the above which will be brought to the attention of the Treasurer’s ministerial team.
Best wishes
[Name withheld], on behalf of the Hon. Jim Chalmers MP
Office of the Hon. Jim Chalmers MP | Treasurer of Australia and Federal Member for Rankin
Which made it a pleasant surprise to read, via Out in Perth, the Treasurer Jim Chalmers confirm that LGBTIQA+ issues would indeed be on the agenda at the conference:
‘We recognise that many LGBTIQA+ Australians often face a range of unique challenges when it comes to secure employment.
‘These are exactly the issues that we hope to address through our Jobs and Skills Summit.
‘That’s why removing barriers to employment and workforce participation are central themes of our Jobs and Skills Summit. Our aim is to bring people together around our big economic challenges to ensure more Australians can get a secure, well-paid job.’
Of course, just because LGBTIQ issues might actually be discussed, does not mean the Summit itself, or the Government afterwards, will recommend or commit to taking action to fix the problems which lead to workplace discrimination against, and exclusion of, LGBTIQ people.
I should also note I have not had a response from Albanese, Chalmers or any of the other seven Ministers addressing the substantive concerns raised by my letter.
In which case, the push continues to ensure the Fair Work Act, Sex Discrimination Act and other relevant laws are amended so that LGBTIQ workers are judged on the basis of their ability, not their sexual orientation, gender identity or sex characteristics.
In that context, today I have sent the below emails to two of the primary non-Government voices that will be represented at the Jobs and Skills Summit: ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott.
Hopefully their assistance will help give voice to the need to legislate better protections for LGBTIQ workers in Australia.
*****
Sunday 28 August 2022
Sally McManus
Secretary
Australian Council of Trade Unions
Dear Ms McManus
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice advocating for the interests of Australian workers.
In particular, I am writing, both as a union member for two decades, and as a leading advocate for my community, to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more detail about these issues, and the compelling reasons why changes must be made to both.
I note both your own strong personal support, and the strong support of many unions and members of the ACTU, to LGBTIQ rights over the past decade, including through the campaign for marriage equality.
I look forward to your support once again, on Thursday and Friday of this week, and over the following months, for the interests of LGBTIQ workers.
Because I am confident that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
Sunday 28 August 2022
Jennifer Westacott
Chief Executive Officer
Business Council of Australia
Dear Ms Westacott
Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice in central debates around economic and industrial relations reforms.
In particular, I am writing as a leading advocate for my community to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
These include:
Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.
I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more details about these issues, and the compelling reasons why changes must be made to both.
Indeed, I note that you made some of the same arguments for better workplace inclusion in your speech on 27 May this year at the 2022 Australian LGBTIQ Inclusion Awards:
‘[T]oday we are here to celebrate and applaud the excellence of employers and their teams for their commitment to advancing inclusion and diversity.
It’s the right thing to do.
And not just that – it’s also smart business.
When every person can be their best selves at work:
They’re happier
They’re more productive
They’re more creative
They’re more loyal, and
They’re more likely to stay with their current employer.
Doing the right thing is a win-win…
I do not believe that any person should be made to feel excluded.
I do not believe that any person should be made to feel less than they are.
I do not believe that anyone’s personal struggle should be used as a political football.
So today I want to spend the bulk of my time apologising.
I want to apologise to our transgender colleagues.
I want to apologise:
For the hurt you have endured
For the cruelty you have been subjected to, and
For the fundamental misinformation and unfairness that has shrouded the discussion over the last year, but particularly during the election.’
You went on to acknowledge:
‘I understand the fear and worry when you turn up to work and every single new encounter is potentially:
A rejection
The loss of your employment status, or
The loss of your job.
I understand that there is only one choice you have to make.
It is not a flippant or superficial lifestyle choice.
Instead, it’s a difficult and often agonising acceptance to either be yourself or to pretend to be someone else.’
The upcoming Jobs and Skills Summit is another opportunity to demonstrate your commitment to improving the lives of trans and gender diverse Australians, who are affected by both the lack of explicit protections under the Fair Work Act, and the broad special privileges granted to religious organisations under the Sex Discrimination Act.
I look forward to you building on your public apology in May by supporting essential reforms to both these laws later this week.
Because I am confident, based on your speech, that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.
Sincerely
Alastair Lawrie
*****
ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott will play a key role in whether the upcoming Jobs and Skills Summit supports much-needed law reform to protect the rights of LGBTIQ workers.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.
While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.
As always, I will publish any responses received.
*****
Prime Minister Anthony Albanese
Treasurer Jim Chalmers
Attorney-General Mark Dreyfus
Minister for Employment and Workplace Relations Tony Burke
Minister for Health and Aged Care Mark Butler
Minister for Aged Care Anika Wells
Minister for Education Jason Clare
Minister for Social Services Amanda Rishworth
Minister for the NDIS Bill Shorten
Sunday 21 August 2022
Dear Prime Minister Albanese and other Ministers
Please include LGBTIQ workers in the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.
I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]
However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.
Specifically, page 2 of that document states:
‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’
There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.
This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.
For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:
‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’
The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.
These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’
I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.
Protect transgender, gender diverse and intersex workers under the Fair Work Act
Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.
This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but omit the protected attributes of gender identity and sex characteristics (intersex status).
In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.
Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]
I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]
‘Aligning the Fair Work Act and Sex Discrimination Act
Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’
Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.
This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.
Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:
‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’
is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.
Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.
2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers
That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.
In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:
‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’
And the associated questions on page 7:
‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’
And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’
Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).
Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).
The effects of these exceptions are all-too-real for LGBTQ workers.
Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.
But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.
There are a range of serious consequences which flow from this discrimination, including:
For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.
For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.
Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.
As the dust settles on the recent federal election, and the new Albanese Labor Government settles into office, I wanted to take this short(ish) opportunity to reflect on the term of Parliament just ended, and especially its impact on LGBTIQ Australians.
To the surprise of few readers of this blog, the reflection of the past three years in the rear-view mirror (now thankfully receding into the distance) is far from pretty. Indeed, in my opinion, the 2019-2022 term of the Morrison Liberal/National Government was the worst for LGBTIQ people in my lifetime, by some margin.
There are many reasons for arriving at this conclusion, chief among them the Religious Discrimination Bill, which came to dominate the Morrison Government’s legislative agenda, especially in its dying days.
Remember, this was a law that sought to legally protect offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability and people of minority faiths. By over-riding existing state and territory anti-discrimination laws, it also procedurally denied access to justice for victims of discrimination.
The Coalition’s Religious Discrimination Bill featured the broadest special privileges allowing religious organisations to discriminate against employees and people accessing their services of any anti-discrimination law in Australia.
If passed, it could have entrenched existing discrimination against LGBT students ‘under the guise of religious views’ – while it definitely would have permitted new forms of discrimination against LGBT teachers by over-riding states and territories that had already protected them.
And even though LGBT people were obviously not the only targets of what I would describe as legislated hatred, I don’t think anyone would deny that denying the rights of LGBT Australians was a primary motivator both for the Morrison Government itself, and for the religious fundamentalists who supported the Bill.
But the Religious Discrimination Bill was by no means the only attack on LGBTIQ people by the Morrison Government.
In the final 12 months alone, we saw all bar six Liberal and National Party Senators vote for a One Nation motion calling for an end to gender-affirming and supporting health care for trans children and teenagers (in June 2021).
In September, the Coalition also rejected straight-forward amendments to the Fair Work Act 2009 (Cth) which would have seen trans, gender diverse and intersex workers protected on exactly the same basis as others, including lesbian, gay and bisexual workers (for more, see: Pathetic, and antipathetic, in equal measure).
In February 2022, on the very day that the Religious Discrimination Bill was finally abandoned, Tasmanian Liberal Senator Claire Chandler introduced legislation seeking to ban trans women and girls from participating in sport. Despite being a private member’s bill, it was later explicitly and repeatedly supported by Morrison himself, and no doubt would have been a priority for his Government had they been re-elected.
And of course the election campaign itself was marred by the toxic transphobia of candidate for Warringah, Katherine Deves, hand-picked by Morrison himself in a transparent effort to invent a culture war and win the votes of bigots (for more, see: Ten months of transphobia).
Then there was the issue of LGBT students in religious schools, a topic about which the Morrison Government continually found new ways to disappoint, ultimately abandoning some of the most vulnerable members of the community.
Morrison had promised way back in October 2018 to protect LGBT kids before the end of that year – a commitment he spent the following three and a half years running away from (for more, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Three Years Old). By the time he was booted from office, his broken promise to end discrimination against LGBT students was 1,318 days old (and yes, I was counting).
The appalling treatment of LGBT kids during the Religious Discrimination Bill debate in February demonstrates just how little he, and his Ministers, cared about this group. Not only did Morrison’s proposed amendments only seek to prohibit expulsion – which would have allowed religious schools to continue to mistreat students in 1,001 other ways, from differential treatment and exclusion, through to discipline, detention, suspension and even asking them to leave).
But the calculated choice to exclude trans and non-binary children from any and all protection whatsoever (and therefore only to prohibit the technical expulsion of lesbian, gay and bisexual kids), was a wholly-prejudiced policy so heinous it can never be forgiven, and that includes anyone who voted for it.
The mistreatment of LGBT students also neatly illustrates why the last term of Parliament was truly the worst of times because, as much as what made the past three years horrific were the constant attacks on our community, just as damaging in the long run was the Morrison Government’s failure to take action to address long-standing human rights abuses against LGBTIQ Australians.
Not least of which are coercive surgeries and other non-consenting medical interventions on children born with innate variations of sex characteristics (otherwise known as intersex children).
Now, as someone who is in their mid-40s, I’m old enough to recognise that the last term of Parliament is not the only three-year period which has been challenging for LGBTIQ Australians.
Indeed, I suspect readers are probably thinking of two other terms which were also brutal – the 2001-2004 term of the Howard Government during which the marriage ban was originally passed, and the 2016-2019 term of the Turnbull/Morrison Government, and especially the plebiscite debate and then postal survey.
But I would argue that neither was as relentlessly awful as the three years just concluded.
In terms of Howard, it was really only the final six months of the 2001-2004 term during which he sought to use same-sex marriage (as it was then called) as a wedge against the Labor Opposition – the first two and a half years were awful for other reasons (especially in the (mis)treatment of First Nations people, and people seeking asylum) but did not specifically target LGBTIQ Australians in the same way as the Morrison Government.
And in terms of the 2016-2019 term of the Turnbull (and later Morrison) Government, I absolutely acknowledge that the debate about the plebiscite, in the last half of 2016, and then the postal survey (which, let’s not forget, was the idea of now-Opposition Leader Peter Dutton) in the last half of 2017, were completely unnecessary, totally divisive and ultimately damaging for far too many LGBTIQ people.
At the same time, it was nevertheless a debate about improving the legal recognition of LGBTIQ relationships, and the Australian people eventually delivered marriage equality, which was a welcome and long-overdue step forward (no thanks to the Liberal Party, who must never be allowed to claim credit for this outcome – see: Liberals Claiming Credit for Marriage Equality Can Get in the Bin).
In contrast, the debate around the Religious Discrimination Bill concerned a law that sought to strip existing rights away from LGBT people, including protections against discrimination, and the ability to go about our day-to-day lives without being subjected to offensive, humiliating, insulting and ridiculing comments simply because of who we are.
The Religious Discrimination Bill debate also dragged on far longer than the plebiscite/postal survey – with the first exposure draft released in August 2019 (followed by a second in December of that year), and the Bill not stopped until February 2022 (30 months later).
I should at least acknowledge two additional contextual factors which help to explain just why the past three years have been so rough – although neither reduces the culpability of the Morrison Government for its actions.
The first is that there was obviously a cumulative effect of the Abbott/Turnbull/Morrison Government’s homophobia, biphobia, transphobia and anti-intersex discrimination. With the safe schools debate and decision to de-fund it occurring in the first term, and the plebiscite debate and postal survey (plus religious freedom review) in the second, the LGBTIQ community was already worn down by seemingly continuous debates about our lives.
Although, as the Treasurer who allocated funding for the plebiscite and then postal survey, Scott Morrison is responsible for a significant share of that accumulated stress.
The second is there is no doubt the ongoing COVID-19 pandemic since early 2020 has exacerbated the harms caused by the Morrison Government’s attacks on our community, especially because it left us isolated and alone in our homes when we needed each other for support and reinforcement to fight back against the Religious Discrimination Bill.
But once again, that context does nothing to exculpate the outgoing Government – indeed, the fact they were willing to push ahead with this divisive legislation, during bushfires, and floods, and a global pandemic, and instead of doing anything to alleviate climate change, only renders them more guilty.
There is one last question which needs to be addressed, and that is: why does writing this down matter? Especially post-election?
After all, the Morrison Government has been defeated. The country has (thankfully) moved on. While for the LGBTIQ community, we already know the past three years were the worst of times, because we endured them, and for many have the scars to prove it.
To which I say there are still (at least) two reasons for publishing this article.
The first is to ensure the Coalition’s homophobia, biphobia, transphobia and anti-intersex discrimination is properly recorded.
This is especially important as the Liberal Party inevitably tries to rewrite the history of the recent past, to present some kind of softer, kinder, gentler image to the electorate. But there was nothing soft, or kind, or gentle, about 2019, 2020, 2021, and early 2022 for lesbian, gay, bisexual, transgender, intersex and queer Australians.
The second is because I think it helps to explain how many of us are feeling, right now. Yes, there is a sense of relief the attacks on us have ended (for now), but that welcome feeling doesn’t even begin to outweigh the sheer exhaustion from fighting constant battles over the last three, or six, or nine, years.
The tiredness in our collective bones.
On a personal level, and as an advocate with more than two decades experience, I will willingly concede the past three years have been the toughest of them all.
The end of 2021, when two years of a global pandemic was followed by the introduction of the final Religious Discrimination Bill in late November, was particularly rough. It is definitely no coincidence that, in late December, exactly three days after lodging our submissions to both Parliamentary inquiries into the Bill, I came down with shingles (the working title for this post was actually ‘Scott Morrison’s Homophobia Gave Me Shingles’ but I assumed, probably correctly, nobody would click on that).
My body was saying, loudly and clearly, enough. Especially as illness ruined the planned summer break, preventing me from seeing my parents in Queensland.
Of course, the Religious Discrimination Bill debate continued, relentless, rolling on into Committee hearings in early January and Parliamentary debate in early February. But so did my need to stand up for my community, and try to see it defeated. Which we did. Collectively. But it came with a significant cost.
For me, that was burnout worse than anything I have experienced before, and – being completely honest – which I’ve only just recovered from (and which helps to explain the lack of recent posts).
Anyway, the point of this is not to say ‘woe is me’ (I’m fine, now). But it is to acknowledge there are a lot of people still feeling pretty bruised and battered by the past three years. And so we should try to show the care towards each other that the Morrison Government didn’t.
Together, we saw off the Religious Discrimination Bill. Together, we can put the worst of times behind us.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Scott Morrison’s defeat ended the worst Commonwealth Parliamentary term for LGBTIQ rights in my lifetime.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
The Senate Legal and Constitutional Affairs Committee has been conducting an inquiry into the Religious Discrimination Bill 2021 over summer.
As part of that inquiry, it held two days of public hearings, on Thursday 20 and Friday 21 January, with a range of witnesses from religious organisations, civil society, business, legal groups, the Australian Human Rights Commission and Attorney-General’s Department.
Here are five things we learned from those hearings, ahead of the Committee’s final report, which is due to be tabled this afternoon (Friday 4 February), prior to debate on the Bill resuming in the House of Representatives next Tuesday (8 February).
Citipointe’s conduct is not an outlier – in fact, it’s exactly the point
By now, most people will be familiar with the situation at Citipointe Christian College in Brisbane, which this time last week, issued a new enrolment contract seeking to discriminate against LGBT students generally, and trans and gender diverse students in particular.
What is also important to note is the way in which they sought to justify this discrimination. Clause 26 of their contract in particular tries to dress it up as discrimination on the basis of religious belief about gender identity, rather than on the basis of gender identity itself:
‘The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion (emphasis added).’
Now, it is highly likely that Citipointe’s actions would be unlawful under the Queensland Anti-Discrimination Act 1991, not just because that legislation does not allow religious schools to discriminate against students on the basis of gender identity, at all, but also because neither does it allow them to discriminate against students on the basis of religious belief beyond the point of initial enrolment.
Therefore, even if the school was successful in arguing this was indeed discrimination on the ground of religious belief about gender identity, it still couldn’t lawfully discriminate against existing trans and gender diverse kids.
Unfortunately, the same safeguard does not exist in the Religious Discrimination Bill, which allows religious schools to discriminate against students on the basis of religious belief not just at the point of enrolment, but throughout their education.
And this right will exist, even if Liberal moderates are successful in amending the Sex Discrimination Act 1984 (Cth) to remove specific exceptions allowing religious schools to discriminate under that law.
Which means, if the Religious Discrimination Bill is passed in its current form, religious schools will continue to discriminate against LGBT students, ‘under the guise of religious views’, rather than sexual orientation and gender identity.
But the outcome will still be the same: LGBT kids mistreated because of who they are.
Above all, the attempted actions by Citipointe on this issue are not an outlier – in fact, multiple religious organisations at the Senate hearings told us this is what they would do.
For example, there was this exchange involving Mr Mark Spencer, Director of Public Policy, Christian Schools Australia:
Senator Andrew Bragg (Liberal): Finally – I’m just conscious of time – on the issue of children in schools, I understand that there was some discussion earlier about the different clauses that may or may not be considered by this parliament. My question is really more on the principle here, which is: do you want to have a right in the law to expel gay kids?
Mr Spencer: Again, you’re making a sweeping statement there that needs a bit more nuance. For a start, you talk about gay kids. Are you talking about same-sex attracted kids who might be committed to living a biblical authentic life? Are you talking about young people who may be, by their behaviour, not meeting the conduct standards of the school? There are a whole range of difference scenarios in there that you need to be unpacking and considering. The short answer is: no, no child has been, and no child do we want to sack simply because they might be same-sex attracted.
Senator Bragg: So your answer is no?
Mr Spencer: The answer is: no child do we want to expel simply because they’re same-sex attracted (emphasis added).
Translation: Christian Schools Australia reserve the right to discriminate against, and even expel, any gay student who is not ‘committed to living a biblical authentic life’. Which means affirming statements like ‘homosexuality is intrinsically disordered’, and pledging to be celibate for life.
In other words (or my words in fact): If a gay kid hates themself enough, they can stay. But if they do not believe who they are is inherently wrong, they can be lawfully mistreated.
Or this exchange with Right Reverend Dr Micheal Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney:
Senator Bragg: I guess the question is: should you be allowed to discriminate against someone based on their sexual preference if they are teaching in accordance with the ethos of the school?
Bishop Stead: No – sorry, I may have misunderstood your question. None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief. If it happens that somebody’s religious belief also reflects their sexuality or their gender in a way which is inconsistent with the belief of the organisation-
…
Bishop Stead: Yes. The religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any of the other protected attributes-
Senator Deb O’Neill (ALP): Race, disability, age-
Bishop Stead: Thank you. They’re looking for the right to, in the wrong language, ‘discriminate on the basis of religion’. We would say ‘to preference on the basis of religion’ – to act in accordance with their religious belief. It’s only at the point at which somebody’s religious belief has changed to reflect their sexuality or gender that makes it inconsistent with the school that we’re into this area of intersectionality (emphasis added).
Again, they might say it’s discrimination on the basis of religious belief (or ‘preferencing’, to use their term), but it’s clear that in practice LGBT students and teachers will be the victims.
Or this exchange with Mrs Moira Deeming, Researcher, Church and Nation Committee, Presbyterian Church of Victoria:
Mrs Deeming: There are gay Christians and teachers – I am a teacher – who are Christians first and the way that they deal with whatever their sexuality feels like is expressed in a Christian manner. It’s about religious freedom and it’s about religious association. It’s not about finding out if someone is gay and cutting them out. It’s about working out: are you like minded with us? If you are like minded, join with us. Then there shouldn’t be an issue.
Senator Bragg: That wasn’t my question, but I know I am out of time. On notice, can you come back with exactly what your position is because, frankly, it’s a bit murky.
Mrs Deeming: Would you mind restating your question clearly just one more time?
Senator Bragg: The question is: do you want to be able to discriminate based on sexual orientation or preference in the hiring of your staff?
Mrs Deeming: That’s a corollary to preferencing based on religious belief. We’re not targeting anybody- (emphasis added)
All three witnesses appear to be saying: we reserve the right to discriminate against LGBT people, we’ll just call it discrimination on the basis of religious belief.
Which is exactly what Citipointe Christian College was trying to do with its contract. Fortunately, that was unlawful because of the much stronger anti-discrimination laws in Queensland.
But, discrimination protections for students and teachers under the Religious Discrimination Bill are much, much weaker, because of the excessive and extreme exceptions provided to religious organisations under this legislation, allowing them to lawfully discriminate.
As a result, there will be plenty more Citipointes around the country in future. And that’s not ‘murky’, it’s perfectly clear.
2. Workers from minority faiths are left unprotected by the Bill
The excessive and extreme religious exceptions contained in the Religious Discrimination Bill 2021 don’t just affect LGBT people.
In fact, one of the groups who stand to lose the most are workers from minority faiths. This is because large, usually-Christian, publicly-funded service delivery organisations – including hospitals, aged care facilities, accommodation providers and disability service providers – will be able to lawfully discriminate on the basis of religious belief in employment.
That means hiring (and firing), and providing (or denying) training, promotion, and other benefits, on the basis of faith rather than ability. Workers who are Muslim, Jewish, Hindu, Buddhist, agnostic and atheist can be treated less favourably than Christians, just because of who they are.
But don’t take my word for it. Here’s Mr Surinder Jain, National Vice President of the Hindu Council of Australia, explaining the Bill’s impact on his community:
‘We have a lot of Hindus who work in aged-care services and disability services, predominantly being run by religious organisations. We have doctors working in private hospitals. We have IT people. Their jobs would be questionable. There is another category of people who are new migrants, who come here and who are desperately looking for a job and they find a job in a religious organisation. There is unsaid pressure on them that they should adapt to the religion of the organisation that they are in. This way the religious freedom [Bill] would actually be taking away their freedom of ideology and religion in declaring their faith and practising their faith and in not being pressured into adopting another faith.’
In short, the Religious Discrimination Bill privileges larger faiths at the expense of smaller ones, and especially employees of the latter.
3.A ‘mask off’ moment revealed what the statement of belief provision is really about
Through much of the hearings, and especially during the appearance by the Attorney-General’s Department on the Friday afternoon, defenders of the Bill attempted to downplay the impact of the unprecedented statement of belief override of all other Commonwealth, state and territory anti-discrimination laws that protects religiously-motivated comments that offend, humiliate, insult and ridicule others.
They tried to make it seem like it was all very reasonable, rather than an extraordinary legal privilege to allow people to make demeaning and derogatory comments about women, LGBT people, people with disability and people of minority faiths in all areas of public life.
Well, not all of them – one witness on the Thursday afternoon let the ‘reasonable’ mask slip, confirming the statement of belief provision will provide a platform for transphobia: Mrs Moira Deeming, Researcher, Church and Nation Committee of the Presbyterian Church of Victoria.
I’ll reproduce the relevant part of the transcript below, but for context, remember that Greens Senator Janet Rice’s late wife was a trans woman:
Senator Janet Rice (Greens): We’re talking about, particularly, clauses 11 and 12 of this bill and, particularly, the statements of belief. The Australian Human Rights Commission say that statements of belief that will be legal under this legislation, which will override state and territory legislation, are currently considered discrimination, and they will no longer be considered discrimination.
Mrs Deeming: Multipartisan support – let’s get a controversial statement. ‘Trans women are men’. Would you consider that, in and of itself, a discriminatory statement that should never be uttered?
Senator Rice: If that were being stated in a workplace to a trans woman, absolutely.
Senator Rice: Do you believe that’s not discrimination?
Mrs Deeming: I just think it’s a statement of belief, and I don’t think it’s necessarily a religious belief.
Senator Rice: And, if it’s offensive to that trans woman, you that it’s acceptable?
Mrs Deeming: I think-
Senator Rice: It’s deeply offensive and potentially causing that trans woman to have severe mental health illness… to not be accepted in their gender identity.
Chair: Senator Rice, I’m just going to ask you to pause here.
Senator Louise Pratt (ALP): But, in the same workplace, someone won’t have the right to call the person who said that a bigot.
Chair: Senator Pratt, I’m just going to ask you to pause as well. Senator Rice has put a question to Mrs Deeming. Mrs Deeming, please answer the question. I don’t want any witness being interrupted, please.
Mrs Deeming: I pose that question because it’s obviously the most controversial one at the moment. It’s not specifically a religious view that biological sex cannot be altered. It’s not. There are many, many people – lesbians, in fact, and homosexual men and people from across the political spectrum, people in every single party here – that would agree with the statement that trans women are, by definition, male. They wouldn’t be making it on the basis of hate. What I’m interested her is finding out whether you’re going to try and take statements like that and class them as inherently harmful, where no offence was intended. It’s just a difference of belief. It’s a belief we don’t subscribe to.
Senator Rice: A difference of belief?… In that sort of instance, in a workplace, if that statement has been given to a young person who is attempting to affirm their gender, it leads to severe mental unwellness and severe impact on them – not being able to affirm their gender. It leads to suicidal ideation. It leads to potential suicide. That is the reality for trans and gender diverse people. So I put it to you that that is, in and of itself, a discriminatory and hateful statement if it is being made to those people.
Mrs Deeming: And I put it to you that it is psychologically abusive to coerce students and other people to say things that they do not believe, especially about the nature of biological-
*****
There’s a lot to take in there obviously, but some things stand out:
Deeming pro-actively chose to raise the statement ‘trans women are men’ – during an exchange with a Senator whose late wife was a trans woman
She argued that it’s ‘just a statement of belief’, and therefore should be legally protected
She did not agree with Rice’s comments about the harm caused by such statements to trans and gender diverse people
Instead, Deeming claimed it is ‘psychologically abusive’ to require students and other people to effectively treat trans and gender diverse people with respect.
In this exchange, Deeming confirmed that the statement of belief provision is not about providing protection for people who simply state ‘marriage is between a man and a woman’ – it is instead really about allowing people to make deeply transphobic comments to others, even to fellow employees in the workplace who are simply trying to do their job.
4. ‘The limit does not exist’ to the religious freedom agenda
There was another development over the course of the hearings which reveals a helluva lot about the ever-growing demands of the ‘religious freedom’ movement – and how it will continue to strip away the rights of others, with little care for the consequences it creates.
This relates to proposals to redraft clause 12 of the Bill – which is the ‘statement of belief’ provision – ostensibly to ensure it is constitutional. These changes were put forward by Professor Nicholas Aroney, who had previously served as a member of the Ruddock Religious Freedom Review (which helped to create the mess we are now in).
Anyway, from Mr Aroney’s submission to the Committee:
‘To maintain this policy objective while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution it would be sufficient to amend the clause so that it reads:
(1) A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.
(2) Notwithstanding any of the following State of Territory laws, it is not unlawful to make a statement of belief, in and of itself:’
The redrafted amendment then lists all four of the Commonwealth anti-discrimination Acts (Racial, Sex, Disability and Age), and each of the primary state and territory anti-discrimination laws (such as the NSW Anti-Discrimination Act 1977).
Now, I am not a constitutional lawyer, so I can’t tell you whether it has made the provision more, or less, constitutional.
However, I am an expert on the Religious Discrimination Bill and I can tell you that with this drafting Mr Aroney has made sure the ‘statement of belief’ clause would explicitly override section 18C of the Racial Discrimination Act 1975 (Cth).
As well as all state and territory anti-vilification provisions found in their primary Acts (like the prohibitions on racial, homosexual, transgender and HIV/AIDS vilification in the NSW Anti-Discrimination Act 1977).
This is because his version of clause 12 overrides all parts of these laws (by using the general phrase ‘it is not unlawful’), whereas even the current version of the Religious Discrimination Bill applies to discrimination only (it uses the phrase ‘does not constitute discrimination’ instead).
I can’t speak for Mr Aroney, so I don’t know whether this drafting is deliberate – and he meant to ensure religiously-motivated comments that breach laws like s18C should be protected – or whether it is simply careless.
But even if it was the latter, I think it is symptomatic of the overall ‘religious freedom’ agenda – and that is it is only ever concerned with securing more, and more, and more, rights for religious fundamentalists, like the right to be a bigot towards women, LGBT people, people with disability and people of minority faiths.
And rarely, if ever, do religious freedom advocates bother to step back to consider what is being stripped away from other groups in society. Such as, in this instance, racial minorities.
My view is reinforced by the fact, on Thursday 20 January, multiple witnesses, from a variety of different religious organisations, were asked whether they supported Mr Aroney’s changes. Those that offered their support for his drafting include:
Mr John Steenhof, Principal Lawyer, Human Rights Law Alliance
Mr Mark Sneddon, Executive Director, Institute for Civil Society
Professor Patrick Parkinson, Director, Freedom for Faith
Right Reverend Dr Michael Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney
Reverend Christopher Duke, Convener, Church and Nation Committee, Presbyterian Church of Victoria
Pastor Michael Worker, General Secretary and Director, Public Affairs and Religious Liberty, Seventh-day Adventist Church in Australia, and
Pastor Mark Llewellyn Edwards, Australian Christian Churches.
Again, I have no idea if they each consciously support overriding s18C of the Racial Discrimination Act 1975 (Cth), and other state and territory anti-vilification laws. But they absolutely supported amendments that have this practical effect. And at the very least it seems nobody even stopped to think about who was going to lose out as a result.
That is the insatiable religious freedom agenda in action. And you had best believe that, even if the Religious Discrimination Bill is passed, it will not stop eating away at the rights of others to live their lives free from discrimination.
5. Government Senators still haven’t grasped the full dangers of the Religious Discrimination Bill
It is fair to describe the Religious Discrimination Bills as complex, particularly because it contains a number of unique provisions that do things no other Australian anti-discrimination law has ever done before (like clauses 11 and 12, which specifically override, and undermine, anti-discrimination protections in other jurisdictions).
Nevertheless, it was disheartening when, on the final afternoon of two Senate hearings – which followed another three days of hearings into the Bill by the Joint Committee on Human Rights – the Chair of the Committee (Senator Sarah Henderson), was involved in the following exchanges, demonstrating she still hadn’t fully understood one of the Bill’s main problems:
Chair: Do you have to believe that it’s part of the doctrines and tenets of that religion? There has got to be a factual basis for that. You can’t just subjectively believe that.
Mr Walter [from the Attorney-General’s Department]: It’s a test of whether the individual believes it or not…
…
Chair: Does it have to be genuinely held in relation to you’ve got to factually be able to demonstrate that what you hold as your genuine belief reflect the doctrines and tenets of that religion? Your so-called relationship with God can’t be separated from, or not connected with, the doctrines and tenets of that religion. In other words, you can’t just make something up.
Senator Rice: You can. If you genuinely believe that your religion says so, you can.
Chair: That’s what I’m seeking to clarify. There’s been a genuine concern that many have expressed during these two days of hearings.
Mr Walter: Yes. What it doesn’t do is it doesn’t apply an objective text of saying, for example, ‘I believe X’…
…
Chair: Just to give you an example, could someone who is pro-euthanasia and has made some comments in relation to that issue genuinely consider that such a position is in accordance with the doctrines and tenets of Catholicism, for instance? The concern is that when you start to rely on the individual’s-
Senator Rice: It’s how it’s drafted.
Chair: genuine belief, which might not be connected in any way with the doctrine or tenet of that particular religion, isn’t there an issue with an objective test not applying?
Mr Walter: In that particular example, in theory, yes. However, that person needs to establish that they genuinely believe that. You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways-
Chair: Surely that doesn’t make sense, because that’s not consistent with the Catholic doctrine. How can they genuinely believe that that’s part of a tenet of that faith when it clearly, on its face, does not accord with the doctrines or tenets of Catholicism? How could that-
Senator O’Neill (ALP): That’s before we get to the religions that are new and don’t have such a body of evidence.
Senator Rice: Exactly.
Chair: That’s what makes this very complicated. Is there not a difficulty because there’s not an objective text; it’s a subjective test?
*****
At the very end, Senator Henderson was finally at least starting to ask the right question – because yes, there is a massive difficulty in that the definition of statement of belief is entirely subjective (with clause 5 of the Bill stating that only the person making the statement needs to ‘genuinely consider’ it to be in accordance with the religion).
That’s why this provision will protect an almost unlimited array of fringe beliefs – including white supremacist speech, as long as the person making it ‘genuinely considers’ it relates to their particularly-warped views of Christianity. It would not matter if every single church in Australia disagreed with them.
And the Attorney-General’s Department’s response – You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways – only makes things worse.
Apparently, if you can show you’ve made white supremacist comments, dressed up as religious belief, many times before, then it makes it more likely your comments will be protected from discrimination claims under Commonwealth, state and territory law.
The statement of belief provision is a mess. The whole Religious Discrimination Bill is a mess. And it must be rejected.
Conclusion
The above are just five of the issues which arose during the two days of hearings by the Senate Legal and Constitutional Affairs Committee into the Religious Discrimination Bill. There were many more I could have chosen to highlight here.
Despite this, based on media reports this morning, it seems likely that both Liberal and Labor Senators will recommend that the legislation be passed.
Which gives us just a matter of days to help stop this extreme, radical and unprecedented assault on the human rights of everyday Australians.
The Religious Discrimination Bill might have been introduced by PM Scott Morrison, but it is just as big a test for Opposition Leader Anthony Albanese: will he support legislation that takes away rights from women, LGBT people, people with disability and people from minority faiths?
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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]