Not so fast. Dean Smith’s Marriage Bill is deeply flawed.

Over the past fortnight, there has been increasing discussion about what marriage equality might look like in practice. Based on the widely-held assumption that a majority Yes vote will be announced by the Australian Bureau of Statistics (ABS) on Wednesday 15 November, there appears to be a co-ordinated push to ‘unite’ behind Liberal Senator Dean Smith’s Marriage Bill.

 

This includes the decision by the Labor caucus, on Tuesday 17 October, that it will support Smith’s Bill being passed as quickly as possible after the conclusion of the postal survey.

 

This was almost immediately followed by an opinion piece from Alex Greenwich and Anna Brown of Australian Marriage Equality describing Smith’s Bill as ‘a game changer’ and claiming that ‘[i]t would deliver equality for same-sex couples and it also ensures that faith communities can continue to celebrate religious marriage.’

 

One state-based gay and lesbian rights lobby even went so far as to declare Senator Smith’s draft legislation – which, let’s not forget, hasn’t even been introduced into Commonwealth Parliament yet – as ‘the only legitimate bill.’

 

In response to these developments, I had two equally-strong reactions.

 

The first was to say ‘not so fast’. Voting in the postal survey was still well underway, so to presume victory, and to start discussing how it might be implemented, could be seen as hubris, as well as confusing what should have been the one and only message of the Yes campaign – to #postyouryes.

 

It is for this reason that I chose not to write about this topic (what marriage equality legislation should look like) until after Friday 27 October, the date by which the ABS recommended people post their ballots in order to ensure they are counted.[i]

 

My second reaction was also to say ‘not so fast’, only this time in relation to the substance of Smith’s Bill. And that is because his draft legislation might give us marriage, but it will not deliver marriage equality.

 

In fact, on closer analysis it is a deeply flawed Bill. From the title: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (notice what word is missing?). To its apparent purpose: to appease conservative Liberal and National MPs and Senators who oppose the equal treatment of LGBTI Australians under secular law. To its all-important details (discussed below).

 

It is clear that Senator Smith’s Marriage Bill is far less concerned with allowing all couples to marry irrespective of sexual orientation, gender identity and sex characteristics, and far more concerned with allowing individuals and organisations to discriminate against couples on the basis of these very same attributes.

 

Three major shortcomings can be seen by examining key aspects of his draft legislation:

 

  1. Dean Smith’s Marriage Bill gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples

 

Under the Marriage Act 1961, ministers of religion already have the ability to refuse to officiate the wedding of any couple, for any reason. There has never been a serious proposal to remove this ‘right’ to discriminate, and Smith’s Bill won’t alter this situation either.

 

However, what the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 proposes in this area is actually far more radical – and that is to give a new special privilege to existing civil celebrants allowing them to discriminate against LGBTI couples, and to do so entirely lawfully.

 

It would provide people who are already registered as civil celebrants the ability to simply fill out some paperwork and declare themselves to be ‘religious marriage celebrants’ [clause 39DD(2) of the draft legislation].

 

There is only one substantive criterion that an existing civil celebrant must satisfy – that “the choice is based on the person’s religious beliefs” [clause 39DD(2)(c)].

 

That’s it – self-identification is enough. It is the legislative equivalent of never-was-a-Senator Malcolm Roberts’ approach to life: ‘I think I am a religious marriage celebrant, therefore I must be.’ Or the Andrew Bolt version of Descartes’ proposition: ‘I discriminate, therefore I am.’

 

In practice, the Registrar of Marriage Celebrants would be obliged to accept this application and voila – an existing civil celebrant can suddenly refuse to perform weddings of couples solely on the basis of their sexual orientation, gender identity or sex characteristics.

 

Remember, these people are not ministers of religion.

 

They are not formally associated with any church or religious body.

 

And the weddings they officiate do not have to be ‘religious’ in any way, shape or form.

 

But none of that would matter because, on the basis of their personal views and nothing more, they would be provided with what George Brandis would describe as ‘the right to be a bigot’.

 

This situation is bad enough in and of itself. But it is even worse when you consider that it would be setting a terrible new precedent in Commonwealth law.

 

As many people would know, the anti-discrimination protections contained in the Sex Discrimination Act 1984 are already limited by ‘religious exceptions’, which provide religious organisations with special privileges to fire, refuse to hire or deny service to LGBT people.

 

The main exception is contained in sub-section 37(1)(d), which protects “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.”

 

This is supplemented by special privileges for religious schools to likewise discriminate against LGBT students and teachers [section 38].

 

One limitation on both of these exceptions is that they apply to religious organisations only, like churches or schools. They do not provide individuals, who are not connected to any other religious body, the right to discriminate solely on the basis their own personal beliefs (or prejudices).[ii]

 

The introduction of a new special privilege for individual celebrants to discriminate against LGBTI couples, based on their own religious views and nothing else, would therefore be creating a dangerous precedent, one which could be used to argue for expanded rights to discriminate in the future.

 

Indeed, this appears to be the goal of anti-LGBTI hate groups like the Australian Christian Lobby, as well as Liberal backbencher Andrew Hastie who has argued that the exceptions in Smith’s Bill should go much, much further:

 

“The protections offered [extend] only to the wedding and the wedding participants themselves. They need to be expanded to whole-of-life protections” (emphasis added).

 

In the long-term, that is what is really at stake in the debate around marriage equality and religious exceptions – whether individuals will be able to discriminate against us as LGBTI Australians, in every aspect of our lives, based on nothing more than their personal views.

 

And so, while achieving marriage equality in the short-term is obviously important (and I write that as someone who has been engaged for almost eight years), we should make sure we don’t win the battle but lose the war.

 

  1. Dean Smith’s Marriage Bill includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples

 

The second major shortcoming of the Smith Bill is how it approaches the issue of ‘religious exceptions’ more broadly.

 

As indicated above, the Commonwealth Sex Discrimination Act 1984 already provides religious bodies with extremely generous special privileges to discriminate against LGBT Australians.

 

Despite this, the Marriage Amendment (Definition and Religious Freedoms) Bill includes the following:

 

“47B(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.”

 

There are two possible readings of this clause. The first is that it merely reflects existing Sex Discrimination Act provisions, and grants the same privileges to discriminate within the Marriage Act. To which the obvious reply is: if religious bodies already have the ability to discriminate in this way, why does it need to be replicated (some might say duplicated) here?

 

The alternative reading is that this is an expansion of the ability of religious bodies to discriminate, in that it grants new special privileges in relation to same-sex weddings in particular.

 

How broad these new special privileges are depends on what ‘reasonably incidental to the solemnisation of a marriage’ means. Proposed new sub-section 47B(5) notes that “[f]or 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.” Which isn’t exactly helpful (and nor is the Explanatory Memorandum).

 

Irrespective of which reading you adopt, however, I would argue that these new provisions should be rejected. Because they either unnecessarily duplicate protections that already exist. Or they introduce new special privileges to discriminate in wedding-related services simply because same-sex couples will finally be able to get married.

 

This last point is particularly important. Debate around the right to marry is at least as much symbolic as it is practical, and the marriage equality movement has meant so much to so many because it has taken on larger significance – whether lesbian, gay, bisexual, transgender and intersex Australians are considered full citizens. Or not.

 

To give marriage with one hand, but take equality away with the other – by including new special privileges to discriminate against us – fundamentally undermines what should be a powerful symbolic moment.

 

And make no mistake, it does so because of anti-LGBTI prejudice. As much as proponents of this legislation will try to argue it is necessary to protect ‘religious freedom’, as I have written previously this can be seen as a transparent lie.

 

After all, many religious bodies have strong beliefs about divorce and remarriage. And yet following the introduction of ‘no fault’ divorce via the Family Law Act 1975, and during the four decades since, there have not been any amendments to the Marriage Act to grant special privileges to religious bodies allowing them to discriminate against people who remarry.

 

The fact that they are being introduced now, when LGBTI Australians might finally get a seat at the ‘head table’, reveals that these new exceptions are not aimed at protecting ‘religious freedom’ – they are instead designed to protect homophobia (and transphobia, and biphobia, and intersexphobia).[iii] Nothing more and nothing less.

 

  1. Dean Smith’s Marriage Bill strengthens special privileges for some public servants to discriminate against LGBTI couples

 

The final major shortcoming of the Smith Bill relates to the ability of Australian Defence Force Chaplains to discriminate against personnel who wish to get married.

 

Importantly, ADF Chaplains already have the ‘right’ to refuse to officiate the ceremonies of anyone they wish, for any reason they wish, as a result of section 81 of the Marriage Act.[iv]

 

Nevertheless, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 reinforces this ability by adding the following:

 

“81(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 or 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.”

 

The duplication of the existing right of ADF Chaplains to discriminate in this way is entirely unnecessary.

 

But I have a much more substantive problem with the Marriage Act granting such privileges: ADF Chaplains are public servants, and therefore should be able to, indeed should be required to, serve all members of the ADF equally, including lesbian, gay, bisexual, transgender and intersex personnel.

 

The Defence Jobs website seems to recognise this obligation in its advertisements: “the military Chaplain must provide spiritual ministry to all members of the Army, regardless of faith or denomination … in recognition of the imperative to foster firm faith as described, every Chaplain must be the spiritual minister to every member” (emphasis added).

 

Every member should mean every member – not just cisgender and/or heterosexual members. To determine otherwise is to permit public servants to discriminate against people simply because of their personal beliefs, thereby creating Australia’s equivalent of Kentucky’s infamous Kim Davis.

 

The most offensive aspect of these special privileges is that ADF Chaplains are paid for by taxpayers’ money, including LGBTI taxpayers, and yet they will continue to be free to discriminate on the basis of their own anti-LGBTI beliefs.

 

Smith’s Marriage Bill is therefore a missed opportunity to remedy this injustice, either by requiring all Chaplains to serve all ADF personnel without prejudice (which, based on the public debate so far, seems unlikely to be acceptable to religious stakeholders) or by removing the ability of these Chaplains to officiate any weddings, and coming up with a suitable alternative.

 

Which brings me to one of maybe three positive aspects of the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, proposed section 71A, which provides that:

 

“The Chief of the Defence Force may, by instrument in writing, authorise an officer (within the meaning of the Defence Act 1903), other than a chaplain, to solemnise marriages under this Division.”[v]

 

I can see no reason why the appointment of these officers should not be the primary way in which ADF personnel are able to marry while on deployment, something that would effectively guarantee every serving member is treated equally, irrespective of sexual orientation, gender identity or intersex status. Surely that is a goal we can all agree on.

 

Conclusion:

 

If the result of the same-sex marriage postal survey on 15 November is the one that we want, that is not the end of the story – not by a long way.

 

We must also ensure that the legislation that is passed afterwards reflects what we want, or as close to it as possible – and that means not rushing to accept a Bill that might give us marriage, but not deliver marriage equality.

 

We should consider, in detail, all possible legislative options and decide whether what they offer is ‘acceptable’.

 

From my perspective, I don’t think we should accept a Bill that gives new special privileges to existing civil celebrants allowing them to discriminate against LGBTI couples.

 

Nor we should accept a Bill that includes unnecessary and/or new special privileges for religious bodies to refuse to provide facilities, goods or services to LGBTI couples.

 

Finally, I don’t think we should accept a Bill that strengthens special privileges for some public servants to discriminate against LGBTI couples.

 

Consequently, I don’t think we should accept Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

 

I think we can, and we must, do better. Because LGBTI Australians deserve more than just marriage. We deserve genuine marriage equality.

 

150518 Dean Smith

Liberal Senator Dean Smith, whose Marriage Bill uses just nine words to amend the definition of marriage, but more than 400 introducing or expanding special privileges to discriminate against LGBTI couples.

 

Footnotes:

[i] If you are reading this article after 27 October, but before 7 November, and still have your postal survey, then please #postyouryes as soon as possible. The earlier you do, the more chance there is it will be counted, and help Australia finally achieve marriage equality.

[ii] Even the religious exceptions contained in the NSW Anti-Discrimination Act 1977 – which are the broadest (and arguably the worst) in the country – only apply to religious bodies, or educational authorities, and not to individuals.

[iii] The same argument can be made against proposals for civil celebrants to become ‘religious marriage celebrants’ allowing them to discriminate, discussed above. This ‘right’ has not previously been offered (nor sought apparently) in relation to people who remarry – it is only being added now to allow discrimination against LGBTI couples. That is homophobia, pure and simple.

[iv] “A chaplain may refuse to solemnise a marriage under this Part on any grounds which appear to the chaplain to be sufficient and, in particular, on the ground that, in the opinion of the chaplain, the solemnisation of the marriage would be inconsistent with international law or the comity of nations.”

[v] The other two positive features of the draft legislation are the proposed change to the definition of marriage (sub-section 5(1) “Omit ‘a man and a woman’, substitute ‘2 people’”) and the recognition of existing same-sex marriages.

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Submission to National LGBTI Ageing and Aged Care Strategy Review

The Commonwealth Department of Health is currently undertaking a review of the National LGBTI Ageing and Aged Care Strategy, with detailed public submissions due by Friday 12 May 2017. Full details here.

 

My submission focuses on the issue of LGBTI anti-discrimination protections, and answers two of the main questions in the submission template:

 

5.3 In terms of the LGBTI Strategy, where do you think the government and aged care sector need to improve?

 

In this submission, I would like to raise one specific area where, despite some progress having been made, there remains a significant, and urgent, need for further action – and that is the anti-discrimination protections that are provided under the Commonwealth Sex Discrimination Act 1984.

 

One of the (many) positive features of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the ‘carve-out’ to ensure that Commonwealth-funded aged care services operated by religious organisations could not discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) people accessing those services.

 

As noted in section 37:

Religious bodies

(1) Nothing in Division 1 or 2 affects…

(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.

(2) Paragraph (1)(d) 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.”

 

This exception from the over-arching ‘religious exceptions’ provided under the Act was a major achievement in and of itself, removing discrimination from a vulnerable group within a vulnerable group (older LGBTI people within the overall LGBTI community).

 

More importantly, the aged care carve-out in the Commonwealth Sex Discrimination Act 1984 underpins many other achievements of the National LGBTI Ageing and Aged Care Strategy in improving the circumstances of older LGBTI people who live in facilities operated by religious organisations.

 

However, from my perspective, this important reform remains incomplete – because, while it is essential that all Commonwealth-funded aged care services are not permitted to discriminate against LGBTI people accessing their services, I do not believe such services will ever be completely inclusive while they retain the ‘right’ to discriminate against LGBTI people who are employed there.

 

This can be illustrated by considering this issue – the ongoing ability of Commonwealth-funded aged care services operated by religious organisations to fire, or refuse to hire, LGBTI employees – in the context of two of the Principles, and associated Goals, of the existing Strategy.

 

  1. Access and Equity

 

The 3rd Principle contained in the National LGBTI Ageing and Aged Care Strategy is “Access and Equity – All areas of aged care understand the importance of, and deliver, LGBTI-inclusive services”. This is reflected in the 3rd Goal: “Ageing and aged care services will be supported to deliver LGBTI-inclusive services.”

 

Of course, significant work can be, and in many cases has been, done to ensure that the services provided directly to LGBTI older people are as inclusive as possible. But, my fundamental question is: how genuinely inclusive can a service be, taken as a whole, where a member of staff can still be disciplined, or even terminated, for merely disclosing their sexual orientation or gender identity?

 

Is it ‘inclusive’ when a member of staff can be punished for engaging with a LGBTI service user by expressing empathy with them, exchanging personal stories about their respective same-sex partners in the ordinary course of conversation?

 

Is it ‘inclusive’ when an employee can be fired for simply talking with an older LGBTI resident, asking questions about that person’s background and in the process disclosing their own trans gender identity?

 

The answer must be an unequivocal no. The threat of discrimination against LGBTI employees in Commonwealth-funded aged care services operated by religious organisations casts a long shadow over the ability for any such facility to be genuinely inclusive.

 

The only way a fully inclusive aged care service can be provided is by ensuring all LGBTI employees are able to be themselves, and express themselves, in their workplace, without the risk of punishment for who they are or who they love.

 

  1. Quality

 

The 4th Principle featured in the National LGBTI Ageing and Aged Care Strategy is “Quality – Care and support services provide quality services that meet the needs of older LGBTI people, their families and carers and are assessed accordingly”.

 

This principle is then reflected in the 4th Goal: “LGBTI-inclusive ageing and aged care services will be delivered by a skilled and competent paid and volunteer workforce.”

 

There is, however, an inherent contradiction in setting quality as a principle and goal while at the same time legally allowing some Commonwealth-funded aged care facilities to fire, or refuse to hire, staff simply because of their sexual orientation or gender identity.

 

Such an exception means there will inevitably be some situations where the best person for a particular position is not employed due to factors that have absolutely nothing whatsoever to do with their ability. This substantively undermines the ‘quality’ that such a service provides to its residents (both LGBTI and non-LGBTI alike).

 

In short, aged care services should be delivered by the most ‘skilled and competent paid and volunteer workforce’, not the most ‘skilled and competent cisgender heterosexual paid and volunteer workforce.’

 

The inconsistency that lies at the heart of the Strategy is further revealed by considering one of the dot points under the Principle of ‘Quality’ on page 11 of the existing National LGBTI Ageing and Aged Care Strategy:

 

“All aged care staff, from administration to management, understand the life experiences and needs of LGBTI people and are equipped with the necessary tools to provide LGBTI-inclusive practice.”

 

Prima facie, this statement is commendable – that all people providing aged care services ‘understand the life experiences and needs of LGBTI people’.

 

But, looked at in another way, it is absurd to declare all staff should ‘understand the life experiences and needs of LGBTI people’ when we continue to permit some Commonwealth-funded aged care services to discriminate against staff who themselves have life experience as a member of the LGBTI community (and who would therefore already have many of ‘the necessary tools to provide LGBTI-inclusive practice’).

 

Overall, then, I believe that ‘quality’ is a worthy goal to aspire to, and, just as importantly, that it should be delivered by the best workforce possible, irrespective of their sexual orientation or gender identity. This means removing the ‘right’ of some Commonwealth-funded aged care services to discriminate against employees on the basis of fundamentally irrelevant factors.

 

6.2 What issues or specific actions do you believe should be included in the LGBTI Aged Care Action Plan that will be developed under the Diversity Framework?

 

As noted in my earlier answer to question 5.3, I believe that a key problem that must be addressed is the ongoing ability of some Commonwealth-funded aged care services to discriminate against LGBTI employees. This undermines the ability of these organisations to provide a service that is fully inclusive of LGBTI people, as well as limiting the quality of their workforce.

 

This problem should be addressed by the Commonwealth Government, by amending section 37 of the Sex Discrimination Act 1984 to ensure that Commonwealth-funded aged care services cannot discriminate against LGBTI employees (and contract workers), in addition to the existing protections for LGBTI people accessing those services.

 

Such an amendment should be welcomed by organisations across the aged care sector, including those run by religious organisations, because it would help ensure these services are provided by the best possible workforce, and not the best possible cisgender heterosexual workforce.

 

170508 Aged Care Image

The National LGBTI Ageing and Aged Care Strategy is currently under review.

The Marriage Amendment (Same-Sex Marriage) Bill is Unacceptable

This time last week, our major focus was, understandably, on ensuring Bill Shorten and the Australian Labor Party listened to the concerns of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community and agreed to block Malcolm Turnbull’s unnecessary, wasteful and divisive plebiscite.

With that particular mission (almost) accomplished – although the plebiscite’s enabling legislation won’t be ‘dead, buried and cremated’ until it is finally voted down by the Senate in November – it is time to turn our attention to another battle, and that is the issue of religious exceptions.

Last Monday night (10 October 2016), the Government, via Attorney-General George Brandis, released an exposure draft of the legislation it would put before parliament in the event the plebiscite is held, and if that vote was successful.

Since that time, a number of people have expressed their serious concerns about the Marriage Amendment (Same-Sex Marriage) Bill, and especially about the broad ‘rights to discriminate’ contained within. Now that I have had the opportunity to examine this Bill in detail, I am afraid I must join their condemnatory chorus.

Nearly everything about this Bill, from its title down, is unacceptable. It is far more focussed on ensuring that religious organisations, and even individuals, can refuse to serve LGBTI people, than it is about ensuring LGBTI couples are treated equally, and above all fairly, under the law. And, for the reasons that I will outline below, I sincerely believe it should be rejected in its current form.

**********

First, let’s start with that title, and specifically the phrase ‘same-sex marriage’, which is also used in the Bill’s long title (“A Bill for an Act to provide for same-sex marriage, and for related purposes”).

For the umpteenth time, and for the benefit of slow learners like Prime Minister Turnbull and Senator Brandis, ensuring that all LGBTI Australians can marry is not ‘same-sex marriage’, but ‘marriage equality’.

The former phrase is narrow and excludes non-binary trans people, as well as many intersex individuals. Only the latter phrase captures all couples, irrespective of sexual orientation, gender identity and intersex status.

Fortunately, the substance of the Bill actually does include all people – the primary clause would amend the homophobic definition of the Marriage Act enacted by John Howard’s Liberal-National Government in 2004 to read “marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

If that is the case, then why has the Government used the inaccurate phrase ‘same-sex marriage’ in the Bill’s title?

Perhaps it is simply politics, and the ongoing inability of the Coalition’s right-wing to acknowledge that this is, fundamentally, an issue of equality (although not referring to it as marriage equality even after the majority of the population voted for it – which is the precondition for this Bill – would seem to me incredibly petty).

On the other hand, maybe Turnbull and Brandis are right to shy away from describing this legislation as ‘marriage equality’ – because, in the vast majority of its provisions, it is nothing of the sort. Indeed, most of the Bill’s clauses are actually concerned with ensuring couples other than ‘a man and a woman’ are able to be refused service in a wide range of circumstances.

Which means that a far more accurate title for this legislation might be the ‘Marriage Amendment (Allowing any 2 adults to marry, but then allowing them to be denied service if they are LGBTI) Bill’. But, as well as being a mouthful, that might be a little too much ‘truth in advertising’ for this particular Government.

**********

Turning to the more substantive faults of the Marriage Amendment (Same-Sex Marriage) Bill, and the first concerns the rights of ministers of religion to refuse to conduct LGBTI weddings.

Now, let me begin by saying that I actually agree that ministers of religion should legally have the ability to accept, or reject, any couple who wishes to be married by them through a religious ceremony (even if I personally believe that such discrimination is abhorrent).

Indeed, that ‘right’ is already provided to ministers of religion under section 47 of the Marriage Act 1961: “Ministers of religion not bound to solemnise marriage etc. Nothing in this Part: (a) imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage…”

Which means that no amendments are required to the Act to allow ministers of religion to refuse to officiate LGBTI weddings (and none have been proposed by previous marriage equality Bills from Labor, the Greens and even last-year’s cross-party Bill from MPs including Liberal Warren Entsch). So why then does the Bill repeal section 47 and replace it with the following:

Ministers of religion may refuse to solemnise marriages

Refusing to solemnise a marriage that is not the union of a man and a woman

(3) A minister of religion may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) any of the following applies:

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

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

(iii) the minister’s conscientious or religious beliefs do not allow the minister to solemnise the marriage.”

Ministers of religion will still have exactly the same right to refuse to perform any wedding, including newly-recognised LGBTI weddings[i], that they have now. Arguably, it would provide a greater ability for religious organisations to impose their official doctrine on ministers of religion within their faith – although, as we have seen recently, imposing such views is already commonplace.

But the overall power will remain basically the same. So, why introduce these new provisions, spelling out in detail the ability to decline non- ‘man/woman’ marriages, at all?

It is difficult to see any other motivation than plain old homophobia and transphobia.

And that becomes apparent when comparing it against another issue that is also contrary to some religious views – divorce and remarriage[ii]. The Catholic Church in particular espouses an official view against both, and its ministers would therefore reserve the right to decline to officiate second (or third, fourth or even fifth) weddings.

Under both the existing, and the proposed new, sections 47 a minister of religion has the ability to reject couples in these circumstances – without it being spelled out. Just as the wording of the existing section 47 would allow them to reject LGBTI couples, were it to be retained following the introduction of marriage equality, without it necessarily being spelled out.

Which means there is absolutely no valid reason to insert new provisions that single out LGBTI couples (or non- ‘man/woman’ couples) for special, and detrimental, treatment, as part of a redrafted section 47.

Therefore, while the continuing ability of ministers of religion to decline to officiate weddings is not particularly problematic (from a legal point of view anyway), the unnecessary insertion of clauses which specify the right to discriminate against LGBTI couples – but not any other couples – definitely is.

The proposed new section 47 is homophobic and transphobic. It is unacceptable, and it must be rejected.

**********

Sadly, it only gets worse from here. The second substantive fault of the Marriage Amendment (Same-Sex Marriage) Bill is the creation of an entirely new ‘right’ to discriminate against LGBTI couples.

Currently, only ministers of religion have an explicit ‘opt-out’ clause. No equivalent provision or power exists for civil celebrants[iii] – which is entirely reasonable, given they are essentially ‘small businesses’, providing a service that the government has authorised them to, and explicitly not acting on behalf of any religion or religious organisation.

However, the Government is proposing, through this Bill, to allow even these ‘secular’ civil celebrants to reject LGBTI couples simply because of who they are (again, this is something that has not been included in most previous Bills, other than that from Senator David Leyonhjelm[iv]). Proposed new section 47A reads:

Marriage celebrants may refuse to solemnise marriages

(1) A marriage celebrant (not being a minister of religion) may refuse to solemnise a marriage despite any law (including this Part) if:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the marriage celebrant’s conscientious or religious beliefs do not allow the marriage celebrant to solemnise the marriage.”

This is, to put it simply, outrageous.

There is absolutely no reason why someone who is engaged in small business should be able to discriminate in such a way, against people who are LGBTI, simply because of their ‘personal beliefs’. It is the equivalent of encouraging them to put up a sign saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed.’

And exactly how outrageous, and offensive, is revealed by once again comparing it to the situation with divorce and remarriage.

Despite whatever personal beliefs a civil celebrant may hold, and even after the Government’s Bill was passed, they would still not be able to formally decline to officiate someone’s second (or subsequent) wedding. Indeed, it is likely such discrimination would be unlawful under the Sex Discrimination Act 1984, which includes ‘marital or relationship status’ as a protected attribute in section 6[v].

In contrast, if the new section 47A was included in any amendments to the Marriage Act, these same celebrants would be able to reject LGBTI couples on the basis that they were not ‘a man and a woman’[vi], and for no other reason.

In effect, Malcolm Turnbull and his Government are saying that the religious beliefs of civil celebrants can be used to justify discrimination – but only if those religious beliefs are anti-LGBTI (and not, for example, if they are opposed to divorce).

Once again, I am forced to conclude that the proposed new section 47A is homophobic and transphobic. It is unacceptable, and it must be rejected.

**********

But it’s not just civil celebrants who will be allowed to put up unwelcome, on multiple levels, signs saying ‘no gays (or lesbians, or bisexuals, or trans people, or intersex people) allowed’. Religious bodies or organisations will also be able to do so as part of proposed new section 47B, which reads:

Religious bodies and organisations may refuse to make facilities available or provide goods or services

(1) A religious body or a religious organisation may, despite any law (including this Part), 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:

(a) the refusal is because the marriage is not the union of a man and a woman; and

(b) the refusal:

(i) conforms to the doctrines, tenets or beliefs of the religion of the religious body or religious organisation; or

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

If this provision were solely concerned with providing clarity that religious bodies were not obliged to conduct any weddings that they did not condone in their places of worship, like churches, then it may have almost been reasonable.

However, section 47B goes far beyond what would be required to achieve that limited goal. Instead, it provides a wide-ranging ‘right to discriminate’ against LGBTI couples, one that is problematic in at least three key ways:

  • It applies to more than just facilities, but also to the provision of ‘goods and services’, which, given the extent of influence of religious bodies and organisations in Australia, is incredibly broad
  • Sub-section (2)[vii] makes it clear that this right extends to religious bodies or organisations that are engaged in providing commercial services, for profit, and
  • The phrase “for purposes reasonably incidental to the solemnisation of a marriage” is vague, and left undefined, and could potentially capture a range of facilities, goods or services that are not directly connected to either a wedding ceremony or reception.

This section is also cause for concern in that it establishes a precedent whereby discrimination against LGBTI couples is encouraged. One consequence is that, while the current Bill does not allow florists, wedding cake-bakers, photographers or reception venues to refuse service (unless of course they themselves are run by a religious organisation), their voices demanding such exceptions in future will only get louder.

But again the major problem with this section is that it is singling out LGBTI couples – or anyone who doesn’t fit within the definition of ‘a man and a woman’[viii] – for special, and detrimental, treatment. And literally nobody else.

As with civil celebrants, it is only homophobic and transphobic religious belief that is preferenced here – other sincerely-held religious beliefs, for example, against divorce and remarriage, do not attract any such right. Which means that, yet again, the Liberal-National Government is expressing its support for religious freedom, but only as long as the beliefs concerned are anti-LGBTI.

The only possible conclusion is that proposed new section 47B is homophobic and transphobic, which makes it unacceptable. It must be rejected.

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The fourth and final substantive fault in the Marriage Amendment (Same-Sex Marriage) Bill is the addition of a note to section 81, which deals with the rights of Defence Force chaplains to refuse to solemnise weddings.

The new note reads: “Example: A chaplain may refuse to solemnise a marriage that is not the union of a man and a woman where the refusal conforms to the doctrines, tenets or beliefs of the chaplain’s church or faith group.”

I am strongly opposed to allowing these chaplains to discriminate against LGBTI couples in this way. Which might be surprising to some, especially given my view, expressed above, that ministers of religion should legally have this right.

Surprising, that is, until you consider that Defence Force chaplains are public servants, paid for out of everyone’s taxes – LGBTI and non-LGBTI, and religious and non-religious, alike[ix]. Indeed, the Defence Jobs Australia website indicates that chaplains are paid over $94,200 following completion of basic training.

The same website also claims that chaplains must “administer spiritual support to all members, regardless of their religion.”

Therefore, allowing discrimination by Defence Force chaplains fails in principle on two counts:

  • As public servants they should not be able to discriminate against members of the public simply because of their personal beliefs (otherwise we are allowing the Australian equivalent of Kim Davis), and
  • In providing spiritual support to Defence Force personnel, they are expected to do so for all people, not just those who are cisgender and/or heterosexual.

Which means that, if Defence Force chaplains are to continue to be authorised to officiate any weddings, then that must include the weddings of LGBTI people.

To do otherwise is, once again, homophobic and transphobic. It is unacceptable, and it must be rejected.

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There follows a few provisions that are actually positive in nature – removing the existing prohibition on the recognition of foreign marriages between two men, or two women[x] – before one final provision that establishes, clearly, that the Marriage Amendment (Same-Sex Marriage) Bill is more concerned with promoting homophobia and transphobia than in addressing LGBTI inequality.

That is an amendment to the Sex Discrimination Act provision[xi] that currently provides an exception for conduct which is “in direct compliance with” the Marriage Act – because, for example, a civil celebrant is unable to lawfully marry an LGBTI couple.

The introduction of genuine marriage equality should lessen that discrimination, and potentially even obviate the need for such a provision to begin with.

Instead, this amendment expands the exception, by adding conduct that is “authorised by” the Marriage Act, thus ensuring that the exceptions to Australia’s federal LGBTI anti-discrimination framework, which are already too broad[xii], are broadened even further.

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SENATE SINODINOS DEBATE

Attorney-General George Brandis’ Bill is not aimed at achieving genuine marriage equality, and should perhaps be renamed the Marriage Amendment (Allowing any 2 adults to marry, but then allowing them to be denied service if they are LGBTI) Bill.

It is disappointing, although perhaps not entirely surprising, to observe that Prime Minister Malcolm Turnbull and his Liberal-National Government just don’t get it when it comes to marriage equality.

First, they sought to impose an unnecessary, wasteful and divisive plebiscite on LGBTI Australians in order for our relationships to simply be recognised as equal under secular law.

Then we discover that their planned ‘reward’ – if the plebiscite is held, and if we are ultimately successful in their $200 million+ national opinion poll – is actually a fundamentally flawed piece of legislation, that spends more time and effort in expanding the rights of religious bodies, and civil celebrants, to discriminate against us than in actually implementing marriage equality.

We all know, far too well, that the equal recognition of our relationships is long overdue in Australian law. Unfortunately, that equality, genuine equality, will not be achieved via passage of the Marriage Amendment (Same-Sex Marriage) Bill.

At its core, it is homophobic and transphobic, making it unacceptable. I believe that, just as we have campaigned for Parliament to reject the plebiscite, and adopt a better process, we must also demand that they reject this ill-conceived legislation, and replace it with a better Bill.

If you believe that marriage equality should be exactly that – equality – please sign & share this petition to Prime Minister Malcolm Turnbull: Equal Love Should Not Be Treated Unequally.

Footnotes:

[i] It would appear that this provision does not explicitly allow ministers of religion to discriminate against trans individuals or couples where the union is between two people who identify as a man and a woman – although the catch-all ‘right to discriminate’ in 47(1) “A minister of religion may refuse to solemnise a marriage despite anything in this part” would nevertheless still apply.

[ii] Please note that I am not expressing support for such beliefs (against divorce and remarriage). I am merely using this example because, given many people sincerely hold such views, their differential treatment under the Bill makes it clear that the legislation is not concerned with protecting religious freedom, but instead aims to legitimise homophobia and transphobia.

[iii] Curiously, both the Attorney-General’s Media Release announcing the Exposure Draft Bill, and sub-section 2 of the proposed new section 47A, imply that civil celebrants do have such a power. This may be based on a very generous interpretation of section 39F of the Marriage Act 1961 which notes that “A person who is registered as a marriage celebrant may solemnise marriages at any place in Australia” – and in particular that the word may is used here rather than must.

However, it is just as easily argued that the fact ministers of religion currently enjoy an explicit ‘right to discriminate’ under section 47, while there is no equivalent section for civil celebrants, means civil celebrants cannot simply reject couples for any reason whatsoever.

More importantly, without an explicit power, it is likely the actions of civil celebrants would be captured by the anti-discrimination protections of the Sex Discrimination Act 1984 – currently, with respect to sex and relationship status, and, if marriage equality is passed, with respect to sexual orientation, gender identity and intersex status (unless a new right to discriminate is inserted).

[iv] For more, please see: Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

[v] With the definition of ‘marital or relationship status’ in section 4 of the Sex Discrimination Act explicitly including “(d) divorced”.

[vi] Interestingly, my interpretation of this provision means that, unlike ministers of religion, civil celebrants would not be able to reject trans individuals or couples who identify as a man and a woman, particularly because there is no other stand-alone right to refuse.

[vii] Which reads “Subsection (1) applies to facilities made available, and goods and services provided, whether for payment or not.”

[viii] Interestingly, this section would not allow religious bodies or organisations to refuse to provide facilities, goods or services to weddings involving one or two trans people where the couple identified as a man and a woman, although it is possible religious exceptions contained in the Sex Discrimination Act 1984 would make such discrimination lawful.

[ix] Of course, I would argue that the High Court should find this arrangement – the use of taxpayer funds to hire people to perform an explicitly religious function – to be unconstitutional under section 116, but that is an argument for another day (and probably for a more adventurous High Court too).

[x] Sections 88B(4) and 88EA.

[xi] Subsection 40(2A)

[xii] For more, please see: What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

What’s Wrong With the Commonwealth Sex Discrimination Act 1984?

This post is part of a series examining anti-discrimination laws around the country, focusing on how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against discrimination and vilification. The other posts can be found at the page LGBTI Anti-Discrimination[i] while the text of the Commonwealth Sex Discrimination Act 1984 (‘the Act’) can be found at the Federal Register of Legislation.[ii]

 

In this post I will be analysing the Act in terms of three main areas: protected attributes, religious exceptions and anti-vilification coverage. I will then briefly discuss any other key ways in which the protections offered by the Act could be improved or strengthened.

 

As we shall see, while the fact the Sex Discrimination Act includes all sections of the LGBTI community is to be welcomed, there are still some serious deficiencies that need to be remedied before it can be considered an effective anti-discrimination, and anti-vilification, framework.

 

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Protected Attributes

 

The Commonwealth Sex Discrimination Act 1984 is one of only four anti-discrimination laws in Australia that explicitly includes all of lesbians, gay men and bisexuals[iii], and transgender[iv] and intersex[v] people (with the other jurisdictions being Tasmania, the ACT and South Australia).

 

This high level of inclusivity is in large part a consequence of the fact the Commonwealth was the last jurisdiction in Australia to introduce any protections against anti-LGBTI discrimination.

 

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was only passed in June 2013, taking effect on August 1st of that year – more than three decades after the NSW Anti-Discrimination Act 1977 first covered homosexual discrimination (way back in 1982).

 

It is perhaps logical then that the most recently passed anti-discrimination law in the country would use the most contemporary terminology. Nevertheless, the achievements of the Act, and the breadth of the protected attributes that are covered, should still be celebrated.

 

In particular, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the first national anti-discrimination law in the world to explicitly include intersex status as a stand-alone protected attribute.

 

The definitions of the other protected attributes introduced – sexual orientation and gender identity – are also progressive in that they do not reinforce a sex or gender ‘binary’.

 

Sexual orientation in the Act refers to attraction to “the same sex” or “a different sex” (rather than the opposite sex), while the definition of gender identity does not require a transgender person to identify as male or female (and does not impose any medical or surgical requirements to receive protection either).

 

Overall, then, the Sex Discrimination Act 1984 is undeniably strong in terms of the protected attributes that it covers. Unfortunately, it is mostly downhill from here.

 

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Religious Exceptions

 

While the Sex Discrimination Act 1984 represents best practice when it comes to protected attributes, in terms of religious exceptions it repeats the same mistakes of most state and territory anti-discrimination legislation.

 

Under sub-section 37(1), the Act provides religious organisations with extremely broad special rights to discriminate against LGBT[vi] Australians:

 

“37 Religious bodies

(1) Nothing in Division 1 or 2 affects:

(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.”

 

If religious exceptions are supposed to protect ‘religious freedom’, then the first three paragraphs above, (a)-(c), at least have the benefit of being targeted at activities that are essentially religious in nature (the appointment of religious office-holders, and the holding of religious ceremonies).

 

However, paragraph (d) appears to endorse discrimination against lesbian, gay, bisexual and transgender Australians across large swathes of public life, including in community, health and welfare services, provided the organisation that does the discriminating was established by a religious body.

 

This is overly generous, and completely unjustified – especially, although not solely, because the vast majority of these services receive public funding. After all, the sexual orientation or gender identity of a social worker or healthcare professional has absolutely zero bearing on their competence in their role.

 

The same provision also means that these services can turn away lesbian, gay, bisexual and transgender clients – irrespective of their personal circumstances and need – which is perhaps even more offensive than discriminating against LGBT employees.

 

Just in case there was any doubt whether religious schools were covered by sub-section 37(1)(d)[vii], the Act then includes an entire section which allows these schools to discriminate against LGBT teachers[viii], contract workers[ix] and students[x].

 

It appears some religious schools believe the capacity of a person to teach mathematics or science or English is somehow affected by their sexual orientation or gender identity. And it seems that the teachers that are employed by these schools are expected to impart the values of exclusion and intolerance to their students – what better way for young people to learn to discriminate against LGBT people, all endorsed by the Sex Discrimination Act 1984.

 

There is however one area in which the Act refused to provide carte blanche to religious organisations to discriminate against LGBTI people, and that was through the inclusion of sub-section 37(2):

 

“Paragraph (1)(d) 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.”[xi]

 

In other words, religious organisations that operate Commonwealth-funded aged care services cannot discriminate against lesbian, gay, bisexual or transgender people accessing those services (although they can continue to fire, or refuse to hire, LGBT employees).

 

This ‘carve-out’ was passed despite opposition from some sections of the then Tony Abbott-led Liberal-National Opposition, including Shadow Attorney-General George Brandis[xii], as well as some particularly vocal and extreme religious organisations, with the provisions taking effect on August 1st 2013.

 

In practice, there has been no controversy about the operation of this carve-out[xiii] – basically, it works to protect LGBT people accessing aged care services, irrespective of who operate those services, while having no adverse impact on religious freedom.

 

It is now time that this approach – limiting the ability of religious organisations to discriminate against LGBT people in one area of public life – was expanded to protect LGBT employees in those same aged care services, as well protecting employees and clients across education, community, health and welfare services[xiv].

 

After all, the worthy objects of the Sex Discrimination Act 1984, including “to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs”[xv] cannot be met if, in the same text it allows LGBT Australians to be discriminated against by a large number of organisations, and across a wide range of services.

 

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Anti-Vilification Coverage

 

This section will be the shortest of this post because, well, there isn’t any – the Sex Discrimination Act 1984 contains no coverage against vilification for lesbian, gay, bisexual, transgender and intersex Australians.

 

This stands in marked contrast to the situation for vilification based on race, which is prohibited by section 18C of the Racial Discrimination Act 1975 – a section that has operated effectively for more than two decades (just ask Andrew Bolt), and which has withstood multiple recent attempts at its severe curtailment.

 

Given homophobic, biphobic, transphobic and intersexphobic vilification are just as serious, and just as detrimental, as racial vilification, there is no reason why LGBTI Australians should not have equivalent protections under the Sex Discrimination Act 1984[xvi].

 

This would also bring the Commonwealth into line with the four Australian jurisdictions[xvii] that already prohibit vilification against at least some parts of the LGBTI community.

 

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Other Issues

 

There are several other areas in which the Sex Discrimination Act 1984 does not currently provide adequate protections for the LGBTI community, including:

 

The failure to create an LGBTI Commissioner

 

Part V of the Act creates the position of Sex Discrimination Commissioner within the Australian Human Rights Commission (AHRC). Other areas of discrimination also benefit from the appointment of stand-alone full-time Commissioners, whose primary purpose is to combat such discrimination (including the Race, Age and Disability Commissioners).

 

However, no equivalent position, addressing LGBTI discrimination, was created with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This serious oversight meant that, for most of the last term of Parliament, LGBTI issues were handled on a part-time basis by the then ‘Freedom Commissioner’ (and now Liberal MP), Tim Wilson, whose primary role was to ‘defend’ traditional rights. Whenever those two areas of human rights were deemed to come into conflict, LGBTI issues seemed to come off second best[xviii].

 

If LGBTI discrimination is to be treated seriously by the Commonwealth Government, it must provide the same level of resources to address it within the AHRC – and that means introducing an LGBTI Commissioner as a matter of priority.

 

Superannuation protections exclude transgender and intersex people

 

Section 14 of the Act prohibits discrimination in employment, with sub-section 14(4) focusing on superannuation. However, while it prohibits discrimination on the basis of sexual orientation, it excludes gender identity and intersex status from the list of relevant attributes[xix], apparently leaving transgender and intersex people without protection in this area.

 

Partnerships of five or less people can discriminate against LGBTI people

 

Section 17 of the Sex Discrimination Act 1984 prohibits discrimination in relation to ‘partnerships’, including who is invited to become a partner and the terms and conditions on which they are invited. However, these protections only apply to situations where there are six or more partners, meaning that LGBTI are not protected where there are five or less partners[xx].

 

Voluntary bodies have no restriction on their ability to discriminate

 

Section 39 of the Act provides a very broad ‘right’ for voluntary bodies to discriminate on a wide range of protected attributes, including sexual orientation, gender identity and intersex status, including in determining who may be admitted as members, and the benefits that members receive. While acknowledging the importance of the ‘freedom to associate’, it seems strange that there is no requirement that the discrimination be related to the purpose of the voluntary body, but is instead essentially unrestricted.

 

Reinforcement of discrimination in marriage, including forced trans divorce

 

As with most state and territory anti-discrimination laws, the Act includes a broad exception for actions performed under statutory authority. This includes “anything done by a person in direct compliance with the Marriage Act 1961[xxi] as well as authorising the refusal “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” (laws which in practice mean that trans people who are already married are forced to divorce their partner before they are allowed to have their gender identity officially recognised).

 

Protections in sport exclude transgender and intersex people aged 12 and over

 

Section 42 of the Sex Discrimination Act 1984 limits the coverage of anti-discrimination protection in relation to sport, in particular by allowing discrimination against transgender and intersex people in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant” where the participants are aged 12 or over. As with the voluntary bodies provision, this exception appears unnecessarily broad.

 

Requesting information that does not allow options other than male or female is not prohibited

 

Finally, section 43A provides that “[t]he making of a request for information is not unlawful… merely because the request does not allow for a person to identify as being neither male nor female” and that “[n]othing… makes it unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female.” If we are to truly recognise diversity in sex and gender, it should be reflected in requests for information.

 

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Summary

 

Based on the above discussion, the LGBTI anti-discrimination protections that were introduced via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 can be described as a good start (albeit one that was long overdue).

 

That it includes all sections of the LGBTI community is obviously welcome, and the ‘carve-out’ of aged care service provision from religious exceptions is important in and of itself, as well as demonstrating that those same exceptions are both unnecessary and unjustified.

 

On the other hand, the fact the Act permits discrimination by religious aged care services against LGBT employees, as well as religious organisations providing education, community, health and welfare services – against employees and clients – is its biggest downfall.

 

Other major problems include the complete absence of anti-vilification coverage for the LGBTI community (unlike section 18C of the Racial Discrimination Act 1975), and the failure to create an LGBTI Commissioner within the Australian Human Rights Commission.

 

All of which means there is plenty of work left to do until the Sex Discrimination Act 1984 provides a comprehensive and effective anti-discrimination, and anti-vilification, framework for lesbian, gay, bisexual, transgender and intersex Australians.

 

 

Dreyfus Brandis

Then Attorney-General Mark Dreyfus (L), who passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, and current Attorney-General Senator George Brandis (R), who spoke against the aged care service ‘carve-out’ then, and who has not improved the Act since.

 

Footnotes

[i] See LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions

[ii] See the Federal Register of Legislation

[iii] Discrimination on the ground of sexual orientation is prohibited by section 5A, with sexual orientation defined by the Act in section 4 as “sexual orientation means a person’s orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iv] Discrimination on the ground of gender identity is prohibited by section 5B, with gender identity defined by the Act in section 4 as “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[v] Discrimination on the ground of intersex status is prohibited by section 5C, with intersex status defined by the Act in section 4 as “intersex status 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.”

[vi] Prima facie, it also appears to allow discrimination against intersex people, although the lengthy consultation process that preceded the legislation’s passage demonstrated that religious organisations did not propose to use this exception for that purpose.

[vii] There isn’t really any doubt – sub-section 37(1)(d) clearly applies to religious schools, which means that, just like the NSW Anti-Discrimination Act 1977, religious schools can actually choose from between two different exceptions to defend their discrimination against LGBT teachers and students.

[viii] Section 38 Educational institutions established for religious purpose

(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[ix] Section 38(2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, martial or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[x] Section 38(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

[xi] This provision is reinforced by sub-section 23(3A) which states that religious organisations cannot discriminate against LGBT residents of Commonwealth-funded aged care facilities in terms of accommodation: “Paragraph 3(b) does not apply to accommodation provided by a religious body in connection with the provision, by the body of Commonwealth-funded aged care.”

[xii]See #QandA, Senator Brandis and LGBTI anti-discrimination reforms

[xiii] Given the wide range of scare campaigns run by the Australian Christian Lobby, and others, over recent years (calling for the abolition of the Safe Schools program, and protesting against any progress on marriage equality) there is no doubt if there had been any practical problems with the aged care provisions they would have been splashed across the front page of The Australian by now.

[xiv] This would involve repealing sub-section 37(1)(d) entirely, as well as restricting related provisions (such as sub-section 23(3)(b) that allows religious bodies to discriminate in the provision of accommodation) so that they only apply with respect to the appointment and training of ministers of religion, and the holding of religious ceremonies.

[xv] Sub-section 3(b).

[xvi] For more on this issue – the contrast between section 18C of the RDA, and the lack of LGBTI anti-vilification protections federally – see Don’t Limit Racial Vilification Protections, Introduce Vilification Protections for LGBTI Australians Instead

[xvii] Queensland, NSW, the ACT and Tasmania.

[xviii] For more on this issue, see Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

[xix] (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person.

[xx] The same situation applies with respect to sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities.

[xxi] Sub-section 40(2A) “Nothing in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, affects anything done by a person in direct compliance with the Marriage Act 1961.”

10 Things I Hate About Marriage Inequality. #7: Because Sometimes it Overshadows Other Important LGBTI Issues

In a similar way to reason #9 (“Because sometimes I feel guilty for having #firstworldproblems”), one of the things that frustrates me about marriage equality is that this issue has come to dominate domestic LGBTI politics to such an extent that it can, and has, overshadowed other important issues.

Now, that is not necessarily a criticism of marriage equality campaigners, including Australian Marriage Equality. They have done a fantastic job of promoting marriage equality and ensuring that, over the past 12 years, it has gone from what could be described as a ‘minority concern’, to one of widespread acceptance across the Australian population (even if our parliamentarians are taking far too long to catch up).

It is also not to dismiss the fact marriage equality is an important issue in and of itself – obviously, as someone who is engaged themself, I understand the emotional pull at the heart of this issue which compels so many people to take action (and any regular reader of this blog would note the high volume of posts which relate to the denial of this right, not just in Australia but around the world).

But, and this is a big but, I am not sure that this completely justifies the disproportionate attention, and in some cases, disproportionate energy, which has been given to the issue of marriage equality by our community, especially over the past four or five years.

That statement might be a little bit controversial, so allow me to provide some context before you make up your mind. Let’s compare, for example, the community response (both our own, and the broader Australian community) to marriage equality with that regarding three other important LGBTI issues.

In April 2012, the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into two marriage equality bills conducted an online survey – to which 276,437 Australians responded (including more than 177,000 people in favour).

In subsequent months, the related Senate Standing Committee on Legal and Constitutional Affairs Inquiry received a record number of formal submissions – approximately 79,000, with roughly 46,400 people taking the time to write in support of a Marriage Act that does not discriminate on the basis of sexual orientation, gender identity and intersex status.

Around the same time, the Gillard Government was preparing legislation which would, for the first time ever, provide anti-discrimination protections under Commonwealth law on those exact same grounds.

These protections were contained, along with a range of other measures, in the Human Rights and Anti-Discrimination (HRAD) Bill 2012. The Exposure Draft of that legislation was considered by the same Senate Committee, and a still ‘healthy’ 3000 submissions were made (although, it has to be pointed out, many did not address the specific issue of LGBTI anti-discrimination but were in fact about other aspects of the Bill).

The HRAD Bill was eventually replaced by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which, as the name suggests, focused exclusively on LGBTI protections. When it too was considered by the Senate Standing Committee on Legal and Constitutional Affairs, in June 2013, just 90 standalone submissions were made. Nine. Zero. Or about 0.11% of the total submissions on marriage equality, to the same Committee, just 12 months prior.

To choose another example – during 2012 and 2013 the Australian Curriculum, Assessment and Reporting Authority (ACARA) drafted the national Health & Physical Education curriculum, something which had the potential (or should have anyway) to help young lesbian, gay, bisexual, transgender and intersex students in classrooms around the country.

Except, as I have written previously, the first draft of that curriculum did not even mention the words lesbian, gay or bisexual, erroneously included trans* and intersex in the same definition (and even then only referred to them in the glossary!) and essentially ignored sexual health and HIV.

That draft was open for public consultation from December 2012 to April 2013. In four months, 279 online surveys were completed, as well as 99 formal written submissions. Removing submissions from organisations (mostly from non-LGBTI health and education groups), there were exactly 14 submissions from individuals to that public consultation. One. Four.

In 2014, the HPE curriculum, together with all other subject areas, were referred by the then Commonwealth Education Minister, the Hon Christopher Pyne MP, to homophobe Kevin Donnelly for yet another review. The grand total number of written submissions to that inquiry – of which only a small number would have focused on LGBTI exclusion from Health & Physical Education – was approximately 1,500.

One final example. Again, at the same time as the marriage equality parliamentary debates and the Sex Discrimination Act inquiry were going on, the Senate Standing Committee on Community Affairs was holding its own inquiry on the involuntary or coerced sterilisation of people with disabilities in Australia. One of the key issues examined by that inquiry – perhaps not to begin with, but certainly by the end, primarily as a result of the hard work of groups like OII Australia – was the involuntary or coerced sterilisation of intersex people.

Now, the intersex community might be small in number, even within our own community (see Notes) – but there is no denying this issue looms large in terms of all of the human rights abuses perpetrated against any member of the LGBTI community in Australia, at any point in our history. So, it was perhaps disappointing that the entire Senate inquiry – and not simply for the Report focusing on intersex issues – received just 91 standalone submissions.

But, as we have seen above, that is simply one part of a frustrating overall trend. The entire number of submissions to two LGBTI anti-discrimination inquiries, two reviews of the HPE curriculum, and an inquiry examining the coerced sterilisation of intersex people, is less than the number of submissions to one state-based same-sex marriage inquiry (NSW, in March 2013, received 7,586 submissions), let alone the 79,000 submissions to the 2012 Senate marriage inquiry.

Of course, simply counting submissions in this way doesn’t necessarily reflect other work undertaken, by a range of groups, with respect to anti-discrimination protections, the curriculum or intersex rights – much of which happens behind the scenes.

As indicated above, the high volume of submissions to marriage equality inquiries is also a testament to the hard work of groups like Australian Marriage Equality (and others, including GetUp!), in terms of mobilising the community.

There are also other advantages enjoyed by the issue of marriage equality (it is part of a clear, single-issue global movement, in recent years at least has emerged as part of the cultural zeitgeist, it is a much simpler yes/no policy question), not enjoyed by some of the other issues identified.

And it is much easier to report on – the images of brides and grooms either being denied legal equality, or enjoying newly-won rights, makes marriage equality a very ‘photogenic’ issue. The fact our opponents have given consistently outrageous comments also makes reporting on ‘conflict’ in this area much more straightforward for journalists.

It is even arguable that the disproportionate focus on marriage equality may actually be necessary in order to achieve such a significant and, until recently, almost unimaginable, social change.

And yet, when I reflect on the level of commitment which goes into marriage equality, compared to other important LGBTI issues, I find myself sometimes lamenting that we do not put the same level of energy, and dedicate the same level of time and resources, into the latter.

So, by all means I encourage you to support – or continue to support – the important work that Australian Marriage Equality does (to find out how to get involved, go here).

But, at the same time, it would be great if more people would also support some of the other organisations that, in addition to working on marriage equality, also advocate on a range of other LGBTI issues, which are no less important to the long-term health and well-being of our community. They include:

The NSW Gay & Lesbian Rights Lobby

The Victorian Gay & Lesbian Rights Lobby (<http://www.vglrl.org.au )

Transgender Victoria (<http://www.transgendervictoria.com ) and

OII Australia – Intersex Australia (<http://oii.org.au )

Those are four groups that I am or have been involved in, or have worked with – but there are a range of other LGBTI advocacy groups in states and territories around the country worthy of your support. Because, while marriage equality might be an important thing, it is not and never has been the only thing.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

The national Health & Physical Education curriculum will have an impact on young LGBTI people for years, if not decades.

Notes

  • The reference to the comparative size of the intersex population is absolutely not meant to suggest that the issues it confronts does not count (as a member of another, albeit slightly larger, minority group, that is obviously not a rational position to hold), but it has been included here because it could partly explain why less people would have made a submission to this inquiry. Nevertheless, the scale of injustice involved in the sterilisation (and other unnecessary medical interventions) of intersex people without consent, in Australia, TODAY, means it is something we all should be concerned about.
  • It should also be noted that, when people were presented with a simple way of expressing their concern about the national Health & Physical Education curriculum – via a Change.org petition – at least 6000 people added their signature in less than a month. Obviously, people do care about other issues, including those listed above, so different groups also need to learn better how to engage on these issues, and translate that innate or latent support into concrete actions.

No 10 The Federal Election on September 7

This would possibly have been higher on the list, were it not for the fact the outcome was pretty much inevitable, long before polling day (and certainly by the time I finished working at Parliament House in mid-2012).

But the September 7 election was still a significant moment, because it drew the final curtain on the Rudd & Gillard (& Rudd again) Labor Government that, in less than 6 years, achieved more for LGBTI rights than any other federal Government in history.

Perhaps we, as a community, took some of those achievements for granted. Perhaps, because many of those reforms were so long overdue (case in point: de facto relationship recognition) that they didn’t feel like achievements at all, instead they were simply the actions of a Parliament finally catching up to where the population already was.

More likely, for many of the LGBTI people of Australia, the achievements of the Labor Government were overshadowed by one major law reform which they didn’t implement. As someone who is engaged to be married myself, I understand that frustration (and I would add another couple of major policy failures as well – but more on them later in this countdown).

Nevertheless, the fact that the Rudd/Gillard/Rudd Government did not introduce marriage equality should not mean that we completely disregard their achievements in other areas. After all, they accomplished infinitely more in a little over 5 and a half years than the Howard Government did in twice that time (to be honest, the only positive Howard Government LGBTI achievement I can think of was allowing same-sex couples access to their partner’s superannuation, but even that wasn’t mandated, didn’t cover Commonwealth public sector employees, and was only passed as a trade-off when they introduced the marriage ban in 2004).

The positive list of Labor achievements between 2007 and 2013 includes:

  • De facto relationship recognition (and access to the Family Court on relationship breakdown)
  • The inclusion of sexual orientation, gender identity and intersex status in federal anti-discrimination legislation for the first time (again, more on that later in the countdown)
  • Another first, this time the first National LGBTI Ageing and Aged Care Strategy
  • Providing funding for the National LGBTI Health Alliance for mental health projects
  • Providing funding for QLife, the national network of LGBTI telephone counselling services, to allow a 1800 number to be operational across the country 7 nights a week (the importance of which really shouldn’t be underestimated)
  • Introducing trans* and intersex passport reform, with M, F and X categories (where X includes indeterminate/unspecified/intersex)
  • Permitting LGBTI inclusive couples to access Certificates of No Impediment, to at least allow them to be married overseas, if not at home
  • Providing Gardasil vaccinations to teenage boys, so that future generations of gay and bisexual men are protected from anal, penile and throat cancer
  • Introducing Australian Government Guidelines on the Recognition of Sex and Gender, and
  • Removing some gender requirements for PBS medicines, meaning easier access to some treatments for trans* and intersex people.

The above list (which I am sure is not exhaustive) is, all things considered, a pretty impressive one.

It is a shame that, through their own actions (or, more specifically, inaction), the Rudd and Gillard Government will, for many, be remembered more because of the failure to recognise the fundamental equality of love, than any of the things I have noted above. Because, in reality, they left the state of LGBTI affairs in Australia a far better place on 7 September 2013, than what they inherited on 24 November 2007.

Still, there is one way in which the outgoing Labor Government could be remembered more fondly over time – and that is if the actions of the newly-elected Abbott-led Liberal and National Government make them seem better in hindsight.

Already, that looks like a distinct possibility. The first LGBTI-related action of the Abbott Government was taking the ACT and their same-sex marriage laws to the High Court (thus seeing them overturned). And there are plenty of other tests to come over the next 12-24 months, including deciding whether to continue funding for some of the above-named initiatives. Not to mention the potential threat to anti-discrimination reforms, and in particular the possibility of Brandis & co reintroducing an exemption for religious aged care service providers.

So, while we (quite rightly) criticise the Rudd & Gillard Labor Government for what it didn’t do, perhaps every once in a while we should also reflect on the good things that it did accomplish.