ANU Gender Identity + Sexuality Law Moot Webinar Presentation

In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:

What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and

How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.

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Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?

Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:

1. Ending coercive medical interventions on children born with intersex variations of sex characteristics

Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.

Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.^[i]

The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.

These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.

Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction. 

Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.

In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).^[ii]

Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.

More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:

Recommendation 7

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

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

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

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

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

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

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

Recommendation 8 of that report also recommended that:

‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’

The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.

Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.^[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.

2. Trans and gender diverse birth certificate reform

Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.

Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.

Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.

However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).^[iv]

Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).

Nevertheless, all three states – NSW, Queensland and Western Australia – must urgently amend their births, deaths and marriages laws to support self-identification for their trans and gender diverse residents [for more on this topic, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates].

3. LGBTIQ refugees in Papua New Guinea and Nauru

One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.

In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.

And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.

Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).

However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.^[v]

Anti-Discrimination Reform

While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:

Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.^[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.

Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.^[vii]

Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.

Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)). 

[For more on the overall state of LGBTI anti-discrimination and vilification law, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.]

Other LGBTIQ Law Reform Issues

There are a range of other LGBTIQ law reform issues which still need to be addressed, including:

• Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].

• South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].

• Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,^[viii] and

• The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.^[ix]

Protecting Existing Rights

Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.

In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).

There are currently three major efforts to undermine LGBTIQ rights:

The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:

• Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
• Make it easier for health practitioners to refuse to provide services to LGBTI patients
• Make it easier for religious organisations to discriminate against others
• Make it more difficult for big business to promote diversity and inclusion
• Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
• Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
• Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.

[For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.] 

The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and

The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:

• Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
• Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
• Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).

[For more, see I Stand with Trans Kids, and Against Mark Latham.]

Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.

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Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.

This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).^[x]

It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:

‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’^[xi]

It is also unfair on people accessing these services, who ‘have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.’^[xii]

The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2^nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified: 

‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’

Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.

[Both quotes taken from my March 2020 article ‘Coronavirus and the Religious Discrimination Bill’ which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.] 

But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.

One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.

Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.^[xiii]

Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.

A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).

Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:

‘Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’

One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.

It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.

But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.

People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.

People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.

Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.

Footnotes:

^[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.

^[ii] I made a submission to this inquiry way back in July 2013.

^[iii] Please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

^[iv] This issue – financial barriers to trans healthcare – is something we don’t discuss enough. For more, see: Trans out-of-pocket medical costs.

^[v] For more, see: Australia’s (Mis)Treatment of LGBTI Refugees.

^[vi] For more, see: Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination.

^[vii] For more, see: What’s Wrong With Tasmania’s Anti-Discrimination Act 1998? 

^[viii] An issue I raised in my Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017. 

^[ix] For more, see: No, We Don’t Have Marriage Equality Yet.

^[x] For more, see: Back to School, Back to Discrimination for LGBT Students and Teachers. 

^[xi] From my Submission to [the] Royal Commission into Aged Care.

^[xii] Ibid.

^[xiii] For more, see: Unfairness in the Fair Work Act.