No, We Don’t Have Marriage Equality Yet

12 months ago today, the House of Representatives passed Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017.

 

It was the culmination of more than 13 years of campaigning by Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.

 

When that law took effect, two days later, Australia finally permitted same-sex couples to wed and recognised the marriages of most[i] LGBTI couples.

 

But we did not achieve genuine marriage equality – nor do we enjoy it exactly one year later.

 

This is because the terms and conditions which apply to the marriages of LGBTI couples after 9 December 2017 are different to those which applied to cisgender heterosexual couples before that date.

 

First, and most importantly, at the time of writing, forced trans divorce – where a transgender person who is already married cannot gain access to accurate identity documentation unless they first divorce their partner – still exists in Western Australia and Tasmania[ii] (while legislation to abolish forced trans divorce has only passed in the Northern Territory in the past fortnight).

 

One of the positive aspects of last year’s marriage Bill is that it included a 12-month phase out of exceptions to the Commonwealth Sex Discrimination Act 1984 which allowed states and territories to enforce these discriminatory laws.

 

Which means that, from this Sunday, trans people who are already married in WA and Tasmania will be able to lodge a complaint with the Australian Human Rights Commission (AHRC) about their mistreatment under the Gender Reassignment Act 2000 (WA) and the Births, Deaths and Marriages Registration Act 1999 (Tas).

 

Presumably, they will also be able to seek a new birth certificate through this process (although whether the respective state Governments provide one remains to be seen).

 

Nevertheless, for as long as forced trans divorce sits on the statute books in any Australian jurisdiction, and we compel some trans people who are already married to take action with the AHRC – or even have to go to Federal Court – just to gain access to accurate identity documentation, it is inaccurate to say we have genuine marriage equality in Australia.

 

Second, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 didn’t just allow LGBTI couples to wed – it also inserted new ‘religious exceptions’ into the Marriage Act 1961 itself. For example, it gave existing civil celebrants the ability to nominate themselves as ‘religious marriage celebrants’ and thereby refuse to perform the ceremonies of same-sex couples.

 

Importantly, this didn’t just apply to civil celebrants who were ‘ministers of religion’ of unrecognised religions (sub-section 39DD(1), which is at least arguably consistent with freedom of religion).

 

It also allowed existing civil celebrants to gain access to these special privileges based on nothing more than their personal beliefs. As is now set out in sub-section 39DD(2) of the Marriage Act 1961:

 

Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs

(2) The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

(a) the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

(b) the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:

(i) in writing; and

(ii) in a form approved by the Registrar; and

(iii) within 90 days after Part 1 of Schedule 1 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and

(c) the choice is based on the person’s religious beliefs [emphasis added].

 

In effect, a civil celebrant who was registered before 9 December 2017 could simply sign-up to be able to say ‘no gays allowed’ (or no lesbians, bisexuals or transgender people allowed either).[iii]

 

[Update 13 December 2018: In fact, as revealed by the Ruddock Religious Freedom Review Report, 406 existing civil celebrants registered to take advantage of these new special privileges to discriminate against LGBTI couples. Which, to be honest, is even more people choosing prejudice over equal love than I had anticipated.]

 

Remember that these celebrants are not ministers of religion, and the ceremonies they officiate need not be religious. There is also no test of their beliefs – it is based solely on self-declaration.

 

In practice, this provision has very little to do with actual religious freedom, but instead provides new legal protections to homophobia, biphobia and transphobia as long as it is dressed up as ‘religious’.

 

That much is made abundantly clear by the fact similar provisions had never been introduced to ‘protect’ civil celebrants who wanted to refuse to (re-)marry people who had previously been divorced, or to reject ceremonies for couples of different faiths – both of which arouse strong religious beliefs for many people.

 

These provisions were introduced only when LGBTI couples were finally allowed to marry, demonstrating that they are not aimed at protecting genuine religious freedom at all – their real target is undermining LGBTI equality.

 

This is obviously a terrible provision in and of itself. It also sets a negative precedent for other laws.

 

After all, if civil celebrants – who are in reality a small business, offering commercial services to the public at large – are allowed to discriminate against their customers on the basis of the customer’s sexual orientation or gender identity, then why shouldn’t other businesses be allowed to do the same (a point that religious fundamentalists made frequently during the Ruddock Religious Freedom Review).

 

Indeed, that brings me to the third reason why we still don’t have genuine marriage equality in Australia.

 

Amidst all of the celebrations of the passage of same-sex marriage (and yes, as someone engaged to be married, I still think some celebration was justified), I wonder how many people understand that the following is now written into the Marriage Act:

 

47B Bodies established for religious purposes may refuse to make facilities available or provide goods or services

(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

(2) Subsection (1) applies to facilities made available, and goods or services provided, whether for payment or not.

(3) This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.

(4) To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

(5) For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage [emphasis in original].

 

This is an incredibly broad exception, applying to anything provided by a religious organisation that has anything to do with a LGBTI wedding – even where it is provided by a service that advertises to the public at large and is run for profit.

 

The most generous interpretation of the inclusion of this amendment is that it merely replicates, and reinforces, the existing religious exceptions found in section 37(1)(d) of the Sex Discrimination Act 1984 (provisions which have come under scrutiny this week because they also allow discrimination by religious schools against LGBT students and teachers).

 

But, if that is the case, their inclusion in the Marriage Act is entirely unnecessary. And for a reform that has powerful symbolic value, what does it say about the passage of same-sex marriage that it was accompanied by these equally symbolic, but discriminatory, amendments.

 

On the other hand, it is arguable that the addition of section 47B has actually increased the range of circumstances in which religious organisations can discriminate against people on the basis of their sexual orientation or gender identity.

 

This is particularly the case in relation to Tasmania, where the Anti-Discrimination Act 1998 remains the best practice LGBTI discrimination law in Australia.

 

This is because the religious exceptions in section 47B of the Marriage Act 1961 are framed in a positive way (‘a body established for religious purposes may refuse…’), whereas the existing Sex Discrimination Act 1984 exceptions are phrased in a negative way (‘Nothing in Division 1 or 2 affects…’).

 

This is an important distinction because it is more likely that a positively-framed religious exception will override the anti-discrimination laws of jurisdictions which are inconsistent. In practice, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 has likely allowed new forms of discrimination in our most Southern state.

 

Even if that interpretation is incorrect, it should again be highlighted that this type of exclusionary provision was never needed to allow religious organisations to refuse to serve couples where one or both had previously been divorced, or where the couple had different religious backgrounds.

 

Section 47B was only introduced when LGBTI couples were allowed to walk down the aisle. It’s true purpose is to allow religious bodies – even where they are advertise to the public at large and are run for a profit – to tell same-sex couples to go somewhere else.[iv]

 

Perhaps the most disappointing part about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is that, despite being one of the worst marriage amendment Bills ever introduced into Commonwealth Parliament,[v] it was signed-off on by Australian Marriage Equality (AME), and the Equality Campaign, supposedly on behalf of the LGBTI community.

 

In the days after the announcement of the postal survey results, they presented Senator Dean Smith’s Bill as a fait accompli, arguing for its passage without calling for the removal of its unnecessary provisions regarding existing civil celebrants or wedding-related services, effectively making them accomplices to this new discrimination.

 

In my opinion, AME/The Equality Campaign were wrong to do so.

 

They were wrong on principle. As an organisation purporting to advocate for marriage equality, they should have been calling for genuine equality, not defending the inclusion of provisions that were never needed for anyone else, but were only introduced to target LGBTI Australians. Their acquiescence makes it harder to push for the removal of these provisions in the future.

 

They were wrong on strategy. The religious fundamentalists inside the Coalition Government were the ones who had pushed for the unnecessary, wasteful, harmful and divisive postal survey – and they lost, with the majority of Australians showing they supported the equal treatment of all couples, irrespective of sexual orientation, gender identity or sex characteristics.

 

That is what the LGBTI community should have been demanding: full equality and nothing less. If the Coalition Government refused to pass it because it did not include new rights to discriminate against LGBTI couples, even after imposing an unprecedented $80.5 million three-month national opinion poll, then they would have experienced the biggest of backlashes. It was not up to the LGBTI community to save the Government from itself.

 

And they were wrong on process, because they never secured the informed consent of the LGBTI community to these changes. They never explained, in detail, what had been given up and why, and they never asked lesbian, gay, bisexual, transgender and intersex (LGBTI) people whether it was a price they were prepared to pay.

 

Indeed, when other organisations like just.equal and PFLAG Australia did ask the community what they thought, the response was generally unequivocal – there must be no new discrimination.[vi] In the absence of other evidence, that is the position I think AME/The Equality Campaign should have adopted.[vii]

 

It is likely I will be criticised, possibly quite strongly, for writing this (and especially those last few paras). Many will argue that what’s done is done, and should therefore be left alone.

 

Maybe.

 

Except I would argue that what was done last year – the inclusion of new discriminatory provisions in the Marriage Act itself – needs to be undone.

 

In order to do so, we need to know what exactly is in the Act, and how and why it was included. And then we need to work out a strategy for ensuring sections 39DD(2) and 47B are removed from the statute books so that the stain of discrimination is washed clean, permanently.

 

And of course we need to support the efforts of groups like Transforming Tasmania and Transfolk of WA so that they are successful in finally ending forced trans divorce in Tasmania and Western Australia too.

 

Because for as long as any law requires people to divorce their partner in order to obtain accurate identity documentation, while any LGBTI couple is turned away by a homophobic or transphobic civil celebrant (calling themselves a ‘religious marriage celebrant’), and for as long as religious organisations enjoy special privileges to discriminate in the provision of wedding-related goods, services or facilities, then we don’t enjoy genuine marriage equality in Australia.

 

House of Reps Vote

The moment Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It introduced same-sex marriage. But it isn’t marriage equality.

 

Footnotes:

[i] See the discussion of forced trans divorce below.

[ii] Legislation to abolish forced trans divorce – as well as making the inclusion of gender on birth certificates optional – has passed Tasmania’s Legislative Assembly, but it is unclear if or when it will pass the Legislative Council. Legislation to abolish forced trans divorce has also passed Western Australia’s lower house, but the Legislative Council there does not sit again until 12 February 2019.

[iii] Authorised under section 47A:

Religious marriage celebrants may refuse to solemnise marriages

(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage

Grounds for refusal not limited by this section

(2) This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

[iv] There is a fourth problem with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and that is it reinforces the ability of defence force chaplains to discriminate in terms of which marriage ceremonies they will officiate. As outlined in section 81 of the Marriage Act 1961:

(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body of religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.

Grounds for refusal not limited by this section

(3) This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.

This provision is offensive because military chaplains are public servants, paid for by the taxpayer (including of course LGBTI taxpayers), and obligated to serve all of the people supposedly under their pastoral care. They should be required to provide these services to all ADF personnel, irrespective of their sexual orientation or gender identity – and if they cannot, they should find another job.

On the other hand, it should be acknowledged that defence force chaplains already had the ability to determine who they performed marriages for (although the revised section 81 made this power even clearer) meaning it is somewhat distinct from the existing civil celebrant, and wedding-related services, religious exceptions, both of which are genuinely new ‘rights’ to discriminate.

[v] Perhaps equal worst with Liberal Democrat Senator David Leyonhjelm’s Freedom to Marry Bill 2014, which allowed all civil celebrants to turn away LGBTI couples, but which did not insert new general religious exceptions in the Marriage Act itself.

Liberal Senator James Paterson’s Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 – written in conjunction with the Australian Christian Lobby – was obviously far worse than both, but it was never formally introduced.

[vi] See the results of their November 2017 community survey here.

In particular:

  • 63.1% of respondents opposed the Smith Bill’s civil celebrant provisions
  • 86.9% opposed the wedding-related services exceptions, and
  • 77.4% opposed provisions allowing military chaplains to refuse to officiate the ceremonies of LGBTI ADF personnel.

Importantly, 53.7% of respondents indicated they were willing to wait until marriage equality could be achieved without such provisions (while only 27.9% were not willing to wait and 18.4% were neutral on this issue).

[vii] For more on these issues, see Rodney Croome’s excellent recent article in New Matilda, ‘Yes Yes No: Why the History of Marriage Equality Must be Told Accurately’.

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Genderless (Notices of Intended) Marriage

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

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

 

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

 

  1. Gender (optional) Male, Female or Non-Binary.

 

This is required to be completed for both parties to an intended marriage.

 

The inclusion of this question is entirely unnecessary and it should be removed.

 

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

 

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

 

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

 

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

 

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

 

I can see no such purpose in this instance.

 

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

 

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

 

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

 

Gender (optional), please specify

 

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

 

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

 

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

 

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

 

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

 

Please do not hesitate to contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

  1. a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).

Who pays for homophobia, biphobia and transphobia?

Prejudice against the lesbian, gay, bisexual and transgender (LGBT) community comes with a hefty price tag.

 

It is paid for by the individuals who are subject to direct and indirect acts of discrimination, being denied employment, or services, because of who they are, who they love or how they identify.

 

And by others, who self-censor, missing out on opportunities and on full participation in society, because of the legitimate fear of such discrimination.

 

It is paid for in the adverse mental health impacts experienced by the LGBT community, with depression, anxiety and other mental illness caused by homophobia, biphobia and transphobia.

 

And most tragically by those who end their lives as a consequence.

 

It has even been estimated that homophobia costs the global economy at least $119.1 billion in lost GDP every single year (and presumably more if the effects of biphobia and transphobia are included).

 

But, in this post, I want to take this question – who pays for homophobia, biphobia and transphobia – more literally.

 

In essence, who provides the money that funds anti-LGBT prejudice, who allows it to occur in the first place?

 

The answer (or at least one of the answers), sadly, is all of us. Let me explain.

 

You are probably aware that most religious schools in Australia currently enjoy special privileges that permit them to discriminate against LGBT students, teachers and other staff.

 

This includes religious exceptions such as section 38 of the Commonwealth Sex Discrimination Act 1984, as well as equivalent anti-discrimination laws in New South Wales and Victoria.

 

In fact, Tasmania is the only Australian jurisdiction that does not allow religious schools to discriminate against teachers and students on the basis of sexual orientation, gender identity or relationship status.

 

All of the other states and territories allow at least some discrimination against LGBT students, or teachers, or in many cases both (Queensland actually comes closest to matching Tasmania’s ‘best practice’ approach: it does not permit discrimination against LGBT students, while LGBT teachers are subject to a ‘don’t ask, don’t tell’ regime – although that still means they can be fired if they even mention having a same-sex partner in the workplace).[i]

 

And you likely also know that in Australia, religious schools receive significant government funding.

 

But you are probably not aware just how much public money – taxpayers’ money, your money – is given to these institutions.

 

According to the 2018 Budget, the Commonwealth Government will provide:

 

  • $11.829 billion to non-government schools in 2018-19
  • $12.452 billion in 2019-20
  • $13.145 billion in 2020-21, and
  • $13.821 billion in 2021-22.

 

That’s a total of $51.247 billion in taxpayers’ money going to non-government schools in just four years.

 

In fact, it’s even worse than that. In September, the Morrison Liberal-National Government announced an extra $1.1 billion for non-government schools over the next four years (and $4.5 billion over the next decade).

 

And these numbers don’t include the funding provided by state and territory governments.

 

Based on averages published by the Australian Curriculum, Assessment and Reporting Authority (ACARA), state and territory governments provide approximately one-third of the amount funded by the Commonwealth.

 

That means an extra $17.43 billion of public funding over the next four years alone, bringing the overall total to $69.78 billion.

 

Now, a couple of important caveats. Given religious schools in Tasmania are not permitted to discriminate against either LGBT students or teachers, let’s subtract $1.438 billion from this figure (the $1.079 billion allocated to Tasmanian non-government schools in the Commonwealth Budget, plus an extra third for additional state government funding).

 

And, with a small proportion of non-government schools being non-religious in nature and therefore generally not allowed to discriminate (except in NSW, where the Anti-Discrimination Act 1977 permits all private schools, religious or otherwise, to discriminate against homosexual and transgender students and teachers), let’s be generous and subtract another 5%.

 

That still leaves $64.92 billion in Commonwealth, state and territory government funding allocated to religious schools over the next four years even though they are allowed to discriminate against LGBT teachers, students or both.[ii]

 

And who picks up the tab for this Government-sponsored homophobia, biphobia and transphobia? You do of course.

 

According to the Australian Bureau of Statistics, in June 2017 there were 19.963 million Australians aged 15 and over (and therefore potentially of taxpaying age).

 

This means that for every Australian individual taxpayer Commonwealth, state and territory governments will collectively give $3,252 over the next four years to religious schools that have the legal right to discriminate against LGBT students and/or teachers. Roughly $800 every year, per person, spent subsidising anti-LGBT prejudice.[iii]

 

What makes these figures truly offensive, obscene even, is remembering that this money is coming from LGBT teachers, who are paying for religious schools to have the ability to deny them employment in up to 40% of the jobs for which they are qualified.

 

From the parents of LGBT children, who are paying for the special privileges of these institutions to reject their child’s enrolment simply because of their sexual orientation or gender identity.

 

And from same-sex couples in rainbow families, who are paying for religious schools to deny their children admission on the basis of their parents’ relationship.

 

Indeed, the homophobia, biphobia and transphobia of religious schools is being paid for by the taxes of all LGBT Australians, our families, friends and allies.

 

And by the 61.6% of voters who just last year said that we are, or should be, equal irrespective of our sexual orientation or gender identity.

 

Despite that result (or perhaps even because of it) the Liberal-National Government seems intent on making what is a horrible situation worse.

 

Former Prime Minister Malcolm Turnbull commissioned the Ruddock Review of Religious Freedom during last year’s same-sex marriage parliamentary debate.

 

The contents of that review’s final report, delivered to the government in May but not yet released to the public, were leaked yesterday to Fairfax newspapers, and appear to support the further entrenchment, and possible expansion, of the ‘right’ of religious schools to discriminate against LGBT students and teachers.

 

This could potentially include the Commonwealth Government using the Sex Discrimination Act 1984 to override the anti-discrimination laws of states and territories like Tasmania (and to a lesser extent Queensland) that have moved to limit these special privileges.

 

New Prime Minister Scott Morrison does not seem opposed to such a development, saying that the right to discriminate against gay students ‘already exists’ (ignoring the fact it has been curtailed in some jurisdictions).

 

Three weeks’ ago he also told Sky’s Paul Murray that:

 

Let me give you this example. I send my kids to a Christian school, I think that Christian school should be able to ensure they can provide education consistent with the Christian faith and teaching that I believe as a parent. That’s why I’m sending them there. I don’t think that school should be told who they can and can’t employ, or have restrictions on them in ensuring that they’re delivering to me – the parent, their client, their customer – what I’ve invested in for my children’s education.

 

What he fails to mention is that, by virtue of public funding for religious schools, we are all ‘investing’ in his children’s education.

 

And what the Ruddock Review, Prime Minister Morrison and some members of his Government seem to want is for all of us to pay even more to allow more religious schools to discriminate against more LGBT students and teachers.

 

Well, fuck that. Enough is enough.

 

It’s time we stopped handing over money so that religious schools can fuck over LGBT students.

 

And it’s time we stopped coughing up cash so that these institutions can tell LGBT teachers and other staff to fuck off.

 

These human rights violations have gone on long enough.

 

To borrow a phrase from the American Revolution, there should be no taxation without anti-discrimination protection. Or even more simply:

 

No Taxation For Discrimination.

 

Instead of being an excuse for expanding religious exceptions in relation to religious schools, the Religious Freedom Review should be the catalyst for these special privileges to finally be subjected to proper scrutiny.

 

If the Morrison Government introduces amendments to entrench and expand the exceptions in section 38 of the Sex Discrimination Act, and potentially to override the best practice approach of the Tasmanian Anti-Discrimination Act, it will be up to Labor, the Greens and the cross-bench to block it (for his part, Opposition Leader Bill Shorten is making the right noises, saying “The fact is every child is entitled to human dignity. We shouldn’t even be having this debate”).

 

The pressure will also be on Liberal moderates, who like to claim credit for delivering marriage equality (they didn’t, but that’s a post for another day), to stand up and help defeat proposals that will increase discrimination against that same community.

 

But stopping things from getting worse would hardly be a heroic achievement. The religious exceptions of the Sex Discrimination Act, and the equivalent laws in most states and territories that promote anti-LGBT prejudice, must be repealed.

 

Because LGBT teachers should be employed on the basis of their abilities, not their orientations or identities.

 

And LGBT students should not be refused enrolment, expelled, or discriminated against in any way, shape or form, just because of who they are. Not one student. Not ever.

 

While the rest of us shouldn’t be forced to pay for it, literally funding the homophobia, biphobia and transphobia of religious schools.

 

Bottom line: if religious schools want one cent from us, they must be decent to us, and that means ending their special privileges to discriminate against LGBT students, teachers and other staff once and for all.

 

To take action, please sign and share this petition from just.equal: www.equal.org.au/protectourkidsandteachers

 

aud100front

Your hard-earned dollars are funding anti-LGBT prejudice.

 

Footnotes:

 

[i] For more information about these laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] I am not suggesting that all of these schools would discriminate against LGBT students and/or teachers. In practice, a number provide welcoming environments irrespective of sexual orientation and gender identity. However, these schools retain the legal right to discriminate on these grounds.

[iii] By way of comparison, the Commonwealth Government will provide $245.6 million over the next four years to another inappropriate and unjustified school funding initiative (the National School Chaplaincy Program), or the equivalent of $12.30 for every Australian aged 15 and over. On the other hand, the Turnbull Government, of which Scott Morrison was Treasurer, axed the $8 million Safe Schools program in 2016 – in effect, they could not even be bothered spending 40c per taxpayer, spread over four years (so just 10c per taxpayer per year), to help address homophobia, biphobia and transphobia in schools.

5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform.

[NB This article is the third in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

Five years ago today, Commonwealth Parliament passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

Almost four decades after the Racial Discrimination Act 1975, and nearly three decades after the passage of the Sex Discrimination Act 1984, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians finally received protection against discrimination under Commonwealth law.

 

While the SDA amendments were ground-breaking at the time, no piece of legislation is ever perfect. Five years into its operation, here are five areas in which I believe this Act can and should be improved.

 

  1. Update ‘intersex status’ to ‘sex characteristics’

 

With the passage of the 2013 amendments to the Sex Discrimination Act, Australia became one of the first jurisdictions in the world to explicitly protect people with intersex variations against discrimination.

 

This is because it added ‘intersex status’ as a stand-alone protected attribute, which was defined under section 4 as:

 

‘means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

 

However, since then intersex advocates have expressed concerns about this wording, including that it may not adequately protect all intersex people (for example, potentially conflating or confusing issues of biology and identity).

 

For these reasons, in the landmark March 2017 Darlington Statement, OII Australia (now Intersex Human Rights Australia) and other intersex representatives ‘call[ed] for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ [emphasis added].

 

Sex characteristics was then defined in the Yogyakarta Plus 10 Principles ‘as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Australia helped lead the world in including ‘intersex status’ in the Sex Discrimination Act. Five years later we should take action again by updating this attribute to refer to ‘sex characteristics’ instead.

 

  1. Protect LGBT students against discrimination

 

A positive feature of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the aged care ‘carve-out’ from the otherwise overly-generous (see below) exceptions provided to religious organisations.

 

Sub-section 37(2) of the amended Sex Discrimination Act provides that the general exception ‘does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment of persons to provide that aged care.’

 

In effect, religious-operated aged care facilities that receive public funding are not permitted to discriminate against LGBT people accessing those services (although unfortunately they can still discriminate against LGBT employees).

 

Five years since this clause was passed, and there is exactly zero evidence that it has had any negative impact on the supposed ‘religious freedom’ of these institutions – and plenty of evidence that it has helped to protect older lesbian, gay, bisexual and transgender people from unjustifiable discrimination.

 

Now, it is time to ensure that an equivalent provision is introduced to protect people at the other end of the age spectrum from similar mistreatment: younger LGBT people who are students at government-funded religious schools and colleges.

 

These students are just as vulnerable as older LGBT people accessing aged care services, and just as with the ‘carve-out’ in sub-section 37(2), there is no reason why taxpayer money should be used to discriminate against them on the basis of their sexual orientation or gender identity.

 

It is time to amend the Sex Discrimination Act to remove the special privilege enjoyed by publicly-funded religious educational institutions to discriminate against LGBT students. This could be achieved by adding a similar carve-out in sub-section 37(2), and repealing sub-section 38(3), which also allows discrimination by religious schools against LGBT students.

 

  1. Limit overly-generous general religious exceptions

 

While I believe the exceptions allowing discrimination against LGBT students deserve special attention, it is also important to reform the broader religious exceptions contained in the Sex Discrimination Act.

 

Sub-section 37(1) currently provides that none of the Act’s LGBT discrimination protections apply to:

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

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

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

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’

 

[Section 38 provides a similarly-worded exception in relation to education, with sub-section 38(1) allowing religious schools to discriminate against teachers and other employees, and sub-section 38(2) permitting discrimination against contract workers.]

 

These clauses, and especially s37(1)(d), provide religious organisations with carte blanche to discriminate against LGBT Australians on the basis of their sexual orientation or gender identity. Such discrimination often has very little to do with sincerely-held religious beliefs, but is instead simply homophobia, biphobia or transphobia dressed up in a cloak of religious-sounding language.

 

I believe this discrimination has no place in 21st century Australia – and suspect most ordinary Australians agree.

 

Fortunately, one Australian jurisdiction provides a much better precedent in this area, with legislation that still protects genuine religious freedom without endorsing broader anti-LGBT discrimination.

 

The Tasmanian Anti-Discrimination Act 1998 allows discrimination in certain circumstances in employment (section 51), admission as a student (section 51A) and participation in a religious observance (section 52), but only on the basis of religious belief or affiliation, and not because of sexual orientation or gender identity (or sex, pregnancy, relationship status or other attributes).

 

The Commonwealth Sex Discrimination Act should be amended to adopt the much-preferable Tasmanian approach to religious exceptions, thereby dramatically narrowing the special privileges allowing them to engage in discrimination that would otherwise be unlawful.

 

  1. Introduce protections against anti-LGBTI vilification

 

Currently, only four Australian jurisdictions have anti-vilification laws which protect members of the lesbian, gay, bisexual, transgender and intersex community: NSW, Queensland, Tasmania and the ACT. Of those, Queensland doesn’t cover intersex people, while NSW includes LGBTI people in the new criminal offence of ‘publicly threatening or inciting violence’ but only lesbians, gay men and trans people with binary gender identities can make civil complaints of vilification under the Anti-Discrimination Act 1977.

 

There are still no protections against anti-LGBTI vilification in Victoria, Western Australia, South Australia or the Northern Territory. And there is no LGBTI equivalent of section 18C of the Racial Discrimination Act 1975 under Commonwealth law either.

 

This is a situation that must change. Because homophobic, biphobic, transphobic and intersexphobic vilification is just as serious, and just as damaging, as racial vilification.

 

This was unequivocally demonstrated, and witnessed by the entire country, during last year’s same-sex marriage postal survey, with anti-LGBTI (and especially anti-trans) rhetoric in mainstream media and across society more generally. And while there were temporary, narrowly-defined prohibitions on vilification for the duration of that campaign (which have now expired), the hate-speech against our community that it stirred up continues unabated.

 

For all of these reasons, I believe it is beyond time for the Sex Discrimination Act to be amended to prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

 

  1. Create an LGBTI Commissioner

 

From the Australian Human Rights Commission (AHRC) website:

 

‘The Commission has a President and seven Commissioners:

  • President Emeritus Professor Rosalind Croucher AM
  • Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO
  • Age Discrimination Commissioner The Hon Dr Kay Patterson AO
  • Children’s Commissioner Ms Megan Mitchell
  • Disability Discrimination Commissioner Mr Alastair McEwin
  • Human Rights Commissioner Mr Edward Santow
  • Race Discrimination Commissioner Mr Chin Tan
  • Sex Discrimination Commissioner Ms Kate Jenkins.’

 

Notice who’s missing? Of the major groups protected against discrimination under legislation administered by the AHRC, only one does not have a stand-alone Commissioner of their own: the LGBTI community.

 

Responsibility for LGBTI issues has instead been allocated to the Human Rights Commissioner (both the current office-holder, and his predecessor, Tim Wilson) but it is merely one of a number of different, often competing priorities of their role – sometimes directly so, given their simultaneous responsibility for promoting religious freedom.

 

It is inevitable that, under this organisational structure, LGBTI issues will not be given the same level of attention as those of race, sex, disability and age. The best way to change this is to amend the Sex Discrimination Act to create a full-time Commissioner dedicated to addressing anti-LGBTI discrimination.

 

**********

 

The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement in the long struggle for LGBTI equality in Australia, in my opinion just as significant as the recognition of same-sex de facto relationships in 2008, and the long overdue legalisation of same-sex marriage late last year.

 

But, just five years old, these historic reforms are already showing their inherent limitations. It’s time for Commonwealth parliament to take action to ensure that the Sex Discrimination Act is effective in addressing anti-LGBTI discrimination and vilification. The five reforms suggested above would be a good place to start.

 

julia

Former Prime Minister Julia Gillard passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 in the dying days of her leadership.

 

 

Ending Forced Trans Divorce: Mission Three-Quarters Accomplished

[NB This article is the second in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

It is now 12 months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.

 

Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.

 

At the end of this 12-month period, on 9 December 2018, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 was repealed:

 

Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

 

So now that this deadline has expired, how did the states and territories respond?

 

First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:

 

The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and

 

South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’

 

There are four other jurisdictions that passed legislation in the past 12 months to repeal forced trans divorce:

 

Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and

 

New South Wales, which passed the Miscellaneous Amendment (Marriages) Act 2018 in June. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.

 

Queensland, which also passed its Births, Deaths and Marriages Registration Amendment Act 2018 in June, amending the requirement in section 22 of the original Act that a person be unmarried for their sexual reassignment to be noted on the Register, and

 

The Northern Territory, which passed the Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 in late November, taking effect on 6 December with only three days to spare.

 

Which means that, having passed the December 2018 deadline, two out of eight Australian states and territories have still failed to repeal forced trans divorce.

 

Mission three-quarters accomplished.

 

Of the other jurisdictions, Parliaments in both states have started the process of repeal, but the relevant Bills have yet to pass their (respective) upper houses:

 

Western Australia, where the Gender Reassignment Amendment Bill 2018 passed the Legislative Assembly in November, but cannot be passed by the Legislative Council until 2019, and

 

Tasmania, where the Justice and Related Legislation (Marriage Amendments) Bill 2018 – which makes a range of important amendments beyond simply repealing forced trans divorce – passed the Legislative Assembly in November despite Government opposition, and also awaits consideration by their Legislative Council next year.

 

Of course, it is incredibly disappointing that, more than a year since same-sex marriage was legalised, there are still two states where forced trans divorce remains on the statute books. That is not genuine marriage equality.

 

The good news is that the Sex Discrimination Act 1984 now applies to these discriminatory provisions. However, enforcement still relies on individuals making a complaint to the Australian Human Rights Commission, and potentially through the Federal Courts – simply to access a birth certificate that accurately reflects their gender identity. That is unacceptable.

 

Forced trans divorce won’t finally be made history until the Parliaments of Western Australia and Tasmania get rid of these abhorrent provisions once and for all.

 

28256

 

* This article was originally published in June 2018 as ‘Ending Forced Trans Divorce: Mission Half Accomplished’.

Unfairness in the Fair Work Act

This article is the first in a planned series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia.

 

These posts are not proposed in any order of priority, but will hopefully cover many of the barriers that remain, both big and small, as well as challenges that affect often-marginalised groups within the LGBTI community.

 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

 

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

 

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

 

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

 

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s 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.’

 

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

 

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

 

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

 

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

 

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

 

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

 

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

 

**********

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

27 May 2018

 

Dear Prime Minister

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

 

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

 

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

 

27 May 2018

 

Dear Minister Cash

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

 

Sincerely,

Alastair Lawrie

 

**********

 

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

 

The Fair Work Act entrenches these loopholes in two ways.

 

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

 

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

 

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

 

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

 

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

 

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

 

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

 

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

 

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

 

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

 

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

 

**********

 

Update 24 October 2018:

 

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

 

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

 

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

 

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

 

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

 

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

 

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

 

**********

 

16 July 2018

 

Dear Alastair

 

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

 

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

 

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

 

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

 

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

 

Yours sincerely

 

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

 

Unknown

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from the Fair Work Act?

Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.

Quit Playing Games

With marriage equality set to be debated in Commonwealth Parliament during the next fortnight, I have written the below letter to all MPs and Senators, calling on them to legislate for genuine marriage equality, not a Bill (or amendments) that entrenches our second-class status. To send your own message that #equalmeansequal, click here.

 

**********

 

Dear MP/Senator

 

I met my fiancé Steven two weeks after my 30th birthday.

 

Within a few months it was clear this relationship was something special. Just 17 months after we met, in January 2010, we did what most couples who are in love do: we got engaged.

 

That means we have been engaged, waiting for the right to marry, for almost eight years.

 

Obviously, a lot of ‘life’ can happen in eight years. We’ve moved cities, changed jobs – almost as many times as the country has changed Prime Ministers – and even bought a home together (well, the small fraction that isn’t owned by the bank).

 

But, nearing the end of 2017, we still can’t plan our wedding day. I want to draw your attention to one of the consequences of our extended, involuntary wait.

 

My grandmother, who is now in the second half of her 90s, would have been able to attend our wedding had we held it when most couples do, within a year or two of our engagement.

 

Instead, with her health declining and having recently moved into assisted living, she won’t be there when Steven and I tie the knot.

 

The delay in passing marriage equality, due to the intolerance, and intransigence, of too many politicians over too many years, has stolen that moment of celebration from us all.

 

Steven’s situation is only slightly better. With a Portuguese background, family is even more important to him. He would love nothing more than to be able to wed in front of his grandmother.

 

But, in her late 80s and having recently had a pacemaker installed, we cannot ignore the possibility his dream may not come true, especially if marriage equality is delayed any further.

 

I think I will be even more upset for him if that moment is stolen, too.

 

Of course, the failure to lead on this issue by Julia Gillard, Tony Abbott, and Malcolm Turnbull among others, has taken much, much more from other couples, including Peter Bonsall-Boone and Peter de Waal who, after 50 years together, will forever be denied the ability to marry each other.

 

It’s time for you, as our elected representatives, to end the interminable wait for marriage equality, a wait that has already proven too long for too many.

 

Quit playing games with our relationships. Pass marriage equality now.

 

**********

 

I met my fiancé Steven one week after my brother’s wedding. Two years earlier I attended my sister’s wedding.

 

I look forward to being able to invite both of my siblings, and their respective spouses, to Steven and my nuptials.

 

When we finally say ‘I do’, though, there is a real chance our marriage will be subject to different terms and conditions than theirs. Because the legislation that will give us the right to marry will likely take away our rights in other areas.

 

The Marriage Amendment (Definition and Religious Freedoms) Bill 2017, introduced by Liberal Senator Dean Smith, is already deeply flawed, allowing existing civil celebrants to simply declare themselves ‘religious marriage celebrants’ in order to turn away same-sex couples, and unnecessarily duplicating religious exceptions from the Sex Discrimination Act within the Marriage Act.

 

Yet, there are many MPs and Senators who seem intent on making this unsatisfactory legislation even worse.

 

From Attorney-General George Brandis, who wants to provide all civil celebrants with the ability to discriminate against couples on the basis of their personal religious or conscientious beliefs, even though their role is entirely secular in nature.

 

And to add a ‘religious freedom’ declaration to the Act that will almost inevitably be used by the Australian Christian Lobby-created Human Rights Law Alliance to litigate to establish new ways of discriminating against LGBTI couples.

 

To Treasurer Scott Morrison, who apparently thinks school students need to be protected from learning about couples like Steven and me, and wants to legislate an unprecedented power for parents to withdraw their children from any class that even mentions the fact same-sex marriages exist.

 

Then there’s Liberal Democrat Senator David Leyonhjelm, who has already circulated amendments that would allow commercial businesses to discriminate against LGBTI couples on their wedding day. And, if they hold one, at their engagement party. Oh, and on all of their wedding anniversaries too.

 

None of these so-called ‘freedoms to discriminate’ operate currently with respect to inter-faith marriages, or to divorced couples remarrying. The fact they are being proposed now is homophobic.

 

Nor are any of these new religious exceptions necessary.

 

All that is required to introduce marriage equality is to amend the definition in the Marriage Act to be the union of two people, and to recognise the foreign marriages of same-sex couples that already exist. Nothing more.

 

After all, when Steven and I do eventually marry, there is absolutely no reason why we should be treated any differently to, or worse than, my brother or my sister were.

 

Quit playing games with our rights. Pass genuine marriage equality.

 

**********

 

I met my fiancé Steven four days before the 4th anniversary of John Howard’s ban on marriage equality.

 

His Government’s discriminatory Bill was rushed through the Parliament, and passed by the Senate on Friday 13 August, 2004.

 

Lesbian, gay, bisexual, transgender and intersex Australians have spent more than 13 years trying to undo his changes, and for a better, fairer, and more-inclusive Marriage Act to be adopted in its place.

 

The process for doing so should have been the same one employed by the then-Liberal Prime Minister: a parliamentary vote.

 

Instead, our two more-recent Liberal Prime Ministers have both argued that LGBTI Australians should have to overcome hurdles that have not been placed in front of other groups.

 

First, it was the proposed plebiscite – a national, non-binding vote that has only been used three times in the 117 years since Federation, but not once to decide on the human rights of a minority, and not once in my lifetime.

 

Then, when that process was firmly rejected by the Senate – at the request of the LGBTI community itself – the Turnbull Government decided to invent a ‘postal survey’ run by the Australian Bureau of Statistics, a 3-month, $100 million farce that confirmed what every opinion poll of the last decade had already found, while also stirring up homophobia, biphobia and transphobia in the community.

 

Let’s be clear: the postal survey should never have been held. And it must never, ever be imposed on any other group.

 

Now, having jumped through those extra hoops, and with marriage equality set to be debated by Commonwealth Parliament, the rules have apparently changed once more.

 

Instead of respecting the outcome of the process they chose, which overwhelmingly supported marriage equality, some MPs and Senators are spending more time creating additional restrictions to ensure our relationships are considered lesser than the marriages of cisgender heterosexual couples.

 

They are trying to change the rules of the game, right when LGBTI couples finally get the chance to take our rightful place on the field. Or at the altar. Or wherever we decide to marry.

 

That simply isn’t good enough.

 

Quit playing games with our community. Pass marriage equality, and stop creating new ways to discriminate against us.

 

**********

 

I met my fiancé Steven at a time when I had started to genuinely wonder whether I would ever find someone to spend my days with, let alone share a wedding day.

 

As an LGBTI advocate, the ability to marry felt like an abstract, or even hypothetical, right – important, yes, but not something I thought I would exercise myself.

 

Fortunately, falling in love made the hypothetical real, and today, more than nine years into our relationship, our desire to get married is more real than ever.

 

Unfortunately, public discussion over the past few weeks has at times felt ‘un-real’, as some MPs and Senators have debated the abstract ability of people to discriminate against LGBTI couples, rather than the practical rights of those couples to marry.

 

They have focused on hypothetical homophobic bakers, florists, and wedding-venue providers, and lost sight of the fact marriage equality should be about removing discrimination, not adding to it.

 

Once this parliamentary debate is over, if any of their amendments are passed, the rights of people to discriminate against us will sadly be very real.

 

The message that parliament would send – that our marriages are second-class – would be very real too. And LGBTI Australians would be reminded of that fact every time we are turned away by civil celebrants, or other wedding-related businesses, for years or even decades into the future.

 

It’s time for you, as our elected representatives, to decide what kind of legacy you want to leave. A better, fairer, and more-inclusive Australia. Or a country that chose something else, something lesser.

 

I started this letter by noting that Steven and I met two weeks after my 30th birthday. As much as I might try to deny it that means next year we will celebrate two major milestones: my 40th birthday and, much more significantly, our 10th anniversary.

 

As verbose as I am, I don’t actually have the words to express how much it would mean to me to finally be able to marry the man I love after all this time.

 

And so, I make this final plea to you:

 

Quit playing games. Pass marriage equality now. But, when you do, make sure it treats all couples equally. Because we are. Equal.

 

Sincerely,

Alastair Lawrie

 

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