It’s time Scott Morrison stopped running away from his promise to LGBT kids

Posted on July 7, 2021 by Alastair Lawrie

Today marks an unhappy milestone for LGBT Australians: 1,000 days since Scott Morrison first committed to ending discrimination against LGBT students by religious schools, saying ‘We do not think that children should be discriminated against.’

It was a promise made amidst the significant backlash following the leaking of the Religious Freedom Review recommendations, from a public who were surprised to learn taxpayer-funded faith schools could mistreat, and even expel, kids just because of who they are. And it was made in the middle of the Wentworth by-election campaign.

In committing to remove these special privileges before the end of 2018, Morrison said what he needed to say to get himself out of a tricky political situation. But he never did what was needed to be done to ensure LGBT students were finally protected under the Sex Discrimination Act.

Instead, Morrison has been running away from his promise ever since. If only he ran the national vaccine rollout as quickly, maybe I wouldn’t be writing this from lockdown.

Morrison never even introduced amendments to Parliament to give effect to his commitment, let alone tried to pass them. And refused to support Labor legislation which would have achieved the same goal.

By April 2019 – on the day before the writs were issued for the federal election – Morrison’s then-Attorney-General Christian Porter referred the broader issue of ‘religious exceptions’ to anti-discrimination law to the Australian Law Reform Commission (ALRC) for review.

After his re-election, Morrison preferred to prioritise granting even more special privileges to religious organisations through the ‘Religious Freedom Bills’, and put the fate of LGBT students on hold. Literally. In March 2020, Porter amended the ALRC reporting deadline to be ’12 months from the date the Religious Discrimination Bill is passed by Parliament.’

With the Religious Discrimination Bill delayed by the pandemic, the earliest it could be passed is the end of 2021, meaning the ALRC won’t report until at least late 2022.

And, of course, given the serious problems of the first two exposure draft Religious Discrimination Bills – including undermining inclusive workplaces and access to healthcare – there are many who will be trying to stop it from passing (myself included).

Either way, based on current ALRC timelines, and assuming both that Morrison wins re-election and still feels bound by a promise first made in October 2018, he will not even start drafting legislation until 2023. LGBT students in religious schools would not be protected against discrimination until 2024. At the earliest.

Put another way, LGBT students in year 7 when Scott Morrison first promised to protect them will have finished school before he finally gets around to doing it. If he ever does.

Today might mark 1,000 days since Morrison’s broken promise, but I am more concerned about a larger number: the thousands, and perhaps even tens of thousands, of LGBT students who have been, and are still being, harmed because of his inaction.

For many, that harm will be long-lasting, scarring them far beyond the school gates. I know, because that’s what happened to me.

Not only was my religious boarding school in 1990s Queensland deeply homophobic, from rules targeting same-sex students to a pastor implying gay kids should kill themselves, it helped create a toxic environment which encouraged verbal, and physical, abuse by students against any kid who exhibited any kind of difference. I suffered both.

Like Scott Morrison, I attempted to run away; I spent more than a decade trying to outrun the depression caused by those experiences. But it eventually caught up to me, and age 29 I almost succeeded in what that pastor had hinted I should do.

I was extremely lucky to survive, and even luckier that, with self-care, plenty of support and the love of a good man, I finally managed to thrive.

But whether LGBT kids are able to survive their childhoods should not be a matter of chance. Every LGBT student, in every school, deserves the right to thrive.

As dark as my story is, there is also hope. Because in 2002, the Queensland Government amended their Anti-Discrimination Act to remove the ability of religious schools to discriminate against LGBT students. And I am reliably informed, by multiple sources, that my boarding school is now vastly more accepting of diversity of sexual orientation.

All it takes is a commitment to actions, not just words. Indeed, the ACT Government also responded to the 2018 Religious Freedom Review with a promise to protect LGBT students, and teachers, in religious schools – something they passed before the end of that year.

In contrast, Prime Minister Morrison is still running. Running away from his October 2018 promise. And running away from his obligation to ensure all students have the right to learn in a safe environment. It’s time Morrison stopped running, and allowed LGBT kids to thrive.

*****

Take Action

It is clear from the history of this issue that Prime Minister Morrison is not going to take action just because it is the right thing to do. He will only make this change if we put enough pressure on him. On that basis, it’s up to all of us to tell Morrison that:

It’s time to honour your October 2018 promise to protect LGBT students in religious schools against discrimination on the basis of who they are
It’s time to help LGBT kids thrive no matter which school they attend, and
It’s time to stop delaying this much-needed reform and just get it done already.

There are a variety of ways you can let him know your thoughts:

Twitter: https://twitter.com/ScottMorrisonMP

Facebook: https://www.facebook.com/scottmorrison4cook

Email webform: https://www.pm.gov.au/contact-your-pm

Mail: The Hon Scott Morrison MP Prime Minister Parliament House Canberra ACT 2600

Telephone (Parliament House Office): (02) 6277 7700

Don’t forget to add a personal comment explaining why this issue is important to you.

Oh, and just in case Opposition Leader Anthony Albanese feels like he can avoid this issue, we also need the ALP to be much clearer on where it stands. In particular, we should be asking ‘Albo’:

Do you publicly commit to protecting LGBT students in religious schools against discrimination on the basis of who they are? and
Will you pass legislation giving effect to this commitment in the first six months of your term if you win the next federal election?

Anthony Albanese’s contact details include:

Twitter: https://twitter.com/AlboMP

Facebook: https://www.facebook.com/AlboMP

Email: A.Albanese.MP@aph.gov.au

Mail: The Hon Anthony Albanese MP PO Box 6022 House of Representatives Parliament House Canberra ACT 2600

Telephone (Parliament House Office): (02) 6277 4022

So, readers, it’s time to get writing/calling. Thanks in advance for standing up for LGBT kids.

*****

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/

Or contact Lifeline Australia on 13 11 14.

[Scott Morrison with Member for Wentworth, Dave Sharma]. Morrison first committed to protecting LGBT students in religious schools against discrimination during the October 2018 Wentworth by-election – a promise he has been running away from ever since.

Finally, if you have appreciated reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

A Pride Flag for NSW

Posted on March 26, 2021 by Alastair Lawrie

Today (26 March 2021) marks exactly ten years since the election of the NSW Liberal/National Government.

In that decade, and especially in their early years, they have passed a few important LGBT law reforms, including the long-overdue abolition of the homosexual advance defence (or ‘gay panic’ defence) in 2014 and establishing a scheme to expunge historical criminal records for same-sex intercourse in the same year.

However, the pace of reform has slowed markedly in recent times. The last new LGBTI laws were both passed in 2018, with the removal of ‘forced trans divorce’ (although this was necessitated by the passage of marriage equality in Commonwealth law, while NSW failed to seize the opportunity to amend identity laws more generally) and the introduction of an offence for publicly threatening or inciting violence against others, including on the basis of sexual orientation, gender identity and intersex status (although it replaced existing criminal vilification offences on the basis of homosexuality and transgender status, and as far as I am aware has not been enforced since it commenced).

Indeed, with this week also marking the halfway point of the Liberal/National Government’s third term, there have been no new laws passed addressing LGBTI issues since then, and none appear to be on the horizon.

This is not because the job of LGBTI law reform in NSW is complete. Far from it. As I have written previously, NSW now has the worst LGBT laws in Australia, and is only saved from that title with respect to intersex issues because some other jurisdictions are similarly appalling.

At least part of the problem is that many people, both inside and especially outside our communities, erroneously believe the struggle is over. Which is where my idea for a pride flag for NSW comes in.

From my perspective, the pride flag is inherently political. A symbol of our strength and resilience in overcoming anti-LGBTI prejudice and abuse, as well as a reminder to continue fighting until all lesbian, gay, bisexual, transgender and intersex people are truly ‘free and equal’.

With that in mind, here is what I think the six colours of the ‘traditional’ pride flag^[i] could stand for in NSW today, as a way of bringing attention to at least some of the essential reforms which are still yet to be won here.

Red: Ban conversion practices

Anti-gay and anti-trans conversion practices (sometimes described as ‘ex-gay’ or ‘ex-trans’ therapy) continue in Australia today. Several jurisdictions have already taken steps to ban these practices, with general prohibitions, including in religious environments, now law in Victoria and the ACT, and a more limited ban, only covering health settings, in Queensland. Other states, including Tasmania, are actively considering their own legislation.

To date, the Berejiklian Liberal/National Government has given no firm indication they are considering laws to outlaw these destructive practices. They need to be pressured into taking urgent action to stop them.

Amber/Orange: Protect LGBT students & teachers

By now, we are all familiar with ‘amber alerts’ in the media to draw attention to vulnerable children in danger. Well, every day in NSW there should be an amber alert for LGBT kids – because, in 2021, religious schools are still legally permitted to discriminate against them on the basis of their sexual orientation and/or gender identity.

That is in part because of Scott Morrison’s broken promise from 2018 to amend the Sex Discrimination Act 1984(Cth) to remove the special privileges allowing religious schools to abuse, mistreat, suspend or even expel students just because of who they are.

But it is also because the Berejiklian Liberal/National Government refuses to repeal the special privileges contained in its own law, the Anti-Discrimination Act 1977 (NSW). Indeed, the exceptions in NSW are actually worse, because they permit all private schools, colleges and universities to discriminate, not just those that are religious (making NSW the only jurisdiction in Australia to do so).

Of course, LGBT students are not the only victims of such discrimination. The same provisions also allow private educational authorities to discriminate against LGBT teachers.

If we genuinely want our schools to be safe learning environments where all people are encouraged to reach their full potential, then the NSW Government must protect both LGBT students and teachers from discrimination.

Yellow: End coercive intersex surgeries

As I have written elsewhere, the worst human rights abuses currently affecting any part of the Australian LGBTI community are coercive medical treatments, including surgeries and other interventions, on children born with intersex variations of sex characteristics.

These egregious human rights violations carry lifelong consequences which is why they must be deferred until intersex people can consent, or not consent, to them. Some jurisdictions, including Tasmania and the ACT, appear to be moving in that direction. As yet, there is no sign of similar progress in NSW.

[NB The yellow comes from the intersex pride flag, which is yellow and purple.]

Green: Improve birth certificate access

NSW now has the equal worst birth certificate laws in Australia, alongside Queensland.

Under the Births, Deaths and Marriages Registration Act 1995 (NSW), trans and gender diverse people must undergo ‘a surgical procedure involving the alteration of a person’s reproductive organs… for the purpose of assisting a person to be considered a member of the opposite sex’ before being allowed to update their birth certificate to reflect their gender identity.

This requirement is both unnecessary and inappropriate, especially when some people may not wish to undergo such surgeries, while others cannot afford to do so given the prohibitive costs involved.

NSW has fallen behind the majority of other Australian jurisdictions which have updated their birth certificate laws to allow access based on self-identification only (which is best practice), or at least without physical medical interventions. It is time the Government gave the green light to trans and gender diverse people here to access birth certificates without any medical gate-keeping.

Blue^[ii]: Trans discrimination law reform

Trans and gender diverse people in NSW are also let down by confusing and outdated anti-discrimination protections, as amply demonstrated by the controversy surrounding discriminatory efforts to prevent trans women who have not undergone surgery from accessing McIver’s Ladies Baths in Coogee.

On one hand, there is a definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) which some people might, mistakenly, try to use to justify limiting access on the basis of surgery:

‘recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995^[iii] or under the corresponding provisions of a law of another Australian jurisdiction.’

Except the substantive protections against transgender discrimination apply irrespective of whether the person has had surgery. According to section 38A:

‘A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person–

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’ [emphasis added].

Which means discriminating against transgender women who have not had surgery would probably be found to be unlawful.

Given this, the misleading definition of ‘recognised transgender person’ should be removed from section 4.

However, that would still not address a far bigger problem, including with the broader definition in section 38A: it likely only applies to people with ‘binary’ gender identities, because of its use of the outdated concept of ‘opposite sex’.

In other words, non-binary people in NSW are not explicitly covered by the Anti-Discrimination Act 1977. The NSW Government must remedy this by replacing ‘transgender’ with ‘gender identity’, potentially based on the definition in the Sex Discrimination Act 1984 (Cth):

‘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’.

Lavender/Purple: Bisexual discrimination law reform

The definition of transgender is not the only outdated terminology in the Anti-Discrimination Act 1977 (NSW). The other protected attribute covering (some parts) of the LGBTI community is currently ‘homosexual.’ Section 4 of the Act defines that term to mean ‘male or female homosexual.’

That narrow definition means NSW’s anti-discrimination laws are the only such laws in Australia that fail to protect bisexuals against discrimination.

This omission is truly appalling. It is well beyond time for the NSW Government to update the Anti-Discrimination Act to cover sexual orientation generally, in line with other jurisdictions including the Commonwealth Sex Discrimination Act 1984:

‘sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

[NB The lavender comes from the bisexual pride flag, which is pink, lavender and blue.]

The six issues discussed above are of course not an exhaustive list. There are plenty of other LGBTI laws and policies which also need to be amended by NSW to provide genuine equality to its citizens irrespective of sexual orientation, gender identity and sex characteristics.^[iv]

But, in my opinion, these are some of the most essential reforms in order for people to feel pride that we are making real progress in overcoming homophobia, biphobia, transphobia and intersexphobia.

I started this article by highlighting the fact today is the 10^th anniversary of the election of the NSW Liberal/National Government.

Coincidentally, today also marks 100 weeks until the planned opening ceremony of World Pride 2023 in Sydney.

That means Premier Gladys Berejiklian has exactly 100 weeks to deliver on each of the six issues identified here.

If her Liberal/National Government fails to make these long-overdue and much-needed changes in that time, then I suggest we fly this ‘pride flag for NSW’ at half-mast during that opening ceremony to acknowledge the damage inflicted and pain caused by their ongoing inaction.

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Footnotes:

^[i] I also personally support the newer ‘Progress’ version of the pride flag, incorporating both elements of the trans flag, and black and brown stripes to represent people of colour.

^[ii] The blue here could either represent part of the trans pride flag – which is blue, pink and white – or the blue of the Pacific Ocean at McIver’s Ladies Baths.

^[iii] Which, as we have seen, only allows the granting of new identity documentation following invasive surgeries.

^[iv] Indeed, the Anti-Discrimination Act 1977 (NSW) also needs to be updated to include a new protected attribute of ‘sex characteristics’ covering intersex people, and to remove the general exception in section 56(d) which allows a wide range of religious organisations to discriminate against LGBT employees and people accessing their services.

Submission re: South Australia’s Equal Opportunity (Religious Bodies) Amendment Bill 2020

Posted on November 22, 2020 by Alastair Lawrie

22 November 2020

Attorney-General’s Department

Legislative Services

GPO Box 464

Adelaide SA 5001

Via email: LLPSubmissions@sa.gov.au

To whom it may concern

Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020

Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.^[i]

First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.

Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).^[ii]

However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:

The scope of areas where LGBTI people will be protected – or not

The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)^[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.

This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).

It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:

Children’s education
Health care and disability support
Aged care
Emergency accommodation
Public housing, and
Foster care placement.

In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).

However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.

For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.

In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).

In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)^[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.^[v]

Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.

This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.

Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.

Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:

Tertiary education
Welfare services generally, and
Adoption agencies.

2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status

I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.

This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).^[vi]

The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.

For example, section 51 allows religious organisations to discriminate in employment in the following way:

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religious is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.

Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.^[vii]

From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.

I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.

Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.

3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff

The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).

In my view, this exception is unacceptable, for several reasons.

First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.

Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.

Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.

Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.^[viii]

Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.

Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.

This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.

Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.

In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.

In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.

Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).

Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.

Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.

Sincerely,

Alastair Lawrie

Footnotes:

^[i] See: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

^[ii] For more information, see: Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old.

^[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

^[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.

^[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.

^[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.

^[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’

^[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.

Northern Territory Election: Anti-Discrimination Questions

Posted on August 8, 2020 by Alastair Lawrie

[Update: For a response from the re-elected Labor Government, please scroll to the end of the post]

The Northern Territory election will be held on Saturday 22 August 2020. One of the many issues that could be affected by the outcome is the future of the Anti-Discrimination Act (NT), which commenced on 1 August 1993.

This legislation is now out-dated, and does not offer appropriate protection to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. For more information on its problems, see: What’s Wrong With the Northern Territory Anti-Discrimination Act?

While the Northern Territory Department of the Attorney-General and Justice conducted a public consultation on modernisation of the Act in 2018, no reforms have been proposed or progressed prior to the current election campaign.

In this context, I have sent the below questions to the leaders of the three main parties contesting the election: Territory Labor; the Country Liberal Party; and the Territory Alliance. If I receive answers from any Party prior to the poll, they will be published below.

**********

8 August 2020

The Northern Territory Anti-Discrimination Act is now more than a quarter of a century old, and does not offer appropriate protections against discrimination for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

If your Party forms government after the election on 22 August 2020, will you commit to, as a matter of priority:

Update the definition of ‘sexuality’ to be consistent with the definition of ‘sexual orientation’ in the Sex Discrimination Act 1984 (Cth)?
Introduce a new protected attribute of ‘gender identity’, to ensure all trans and gender diverse people are protected against discrimination?
Introduce a new protected attribute of ‘sex characteristics’, to ensure all intersex people are protected against discrimination?
Amend section 37A(a)(ii) to remove the ability of religious schools to discriminate against teachers and other staff members simply because they are lesbian, gay, bisexual and transgender (LGBT)?
Remove the ability of religious organisations to discriminate against LGBT people in relation to accommodation under section 40(3)?
Introduce new prohibitions against vilification, including on the basis of race, as well as in relation to sexual orientation, gender identity and sex characteristics?

Please note that, if received, your answers will be published on www.alastairlawrie.net, and at ‘No Homophobia, No Exceptions’.

Sincerely,

Alastair Lawrie

No responses were received from Territory Labor, the Country Liberal Party or Territory Alliance prior to the election on 22 August 2020.

**********

The below response was received from Labor Attorney-General Selena Uibo on 5 October 2020. It is disappointing in two key ways. First, most obviously, they did not comment in time for NT voters to consider ahead of the 22 August election.

Second, and more importantly, it abdicates responsibility for fixing the outdated NT Anti-Discrimination Act, preferring to wait until after the Australian Law Reform Commission (ALRC) to complete its review of religious exceptions at Commonwealth, state and territory law.

However, as I have written previously, that review has been delayed until 12 months after the Commonwealth Religious Discrimination Bill has been *passed* by Commonwealth Parliament, which a) hopefully will not happen and b) if it does, won’t be until the first half of 2021 – meaning the ALRC will not report until 2022 at the earliest.

There is absolutely no justification for the re-elected NT Government to postpone taking urgent action to provide LGBTI Territorians with essential protection against discrimination and vilification. Anyway, here is the short response from Minister Uibo:

Dear Alastair,

I refer to your correspondence dated 8 August 2020 in relation to the Anti-Discrimination Act 1991.

The Territory Labor Government is committed to making changes to modernise the Territory legislation based on feedback received.

The Commonwealth Government have referred a number of recommendations following the Federal Report into Religious Freedoms to the Australian Law Reform Committee [sic]. Given the impact that Commonwealth legislation can have on the Northern Territory, we have been awaiting their report, before any changes are considered. This Report was originally due in April 2020; however, this date has now been extended to allow passage of the Federal Religious Discrimination Bill. It is expected that the Law Reform Committee [sic] Report will be returned sometime in 2021.

Thank you for taking the time to write to me regarding this important issue.

Yours sincerely,

Selena Uibo

Chief Minister Michael Gunner (Territory Labor), Opposition Leader Lia Finocchiaro (Country Liberal Party) and Territory Alliance Leader Terry Mills.

Opening Statement to Victorian Inquiry into Anti-Vilification Protections

Posted on August 3, 2020 by Alastair Lawrie

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I will be alone forever, like no-one will love me, like I should just kill myself because it would be easier.

And:

… disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Submission to Victorian Inquiry into Anti-Vilification Protections

Posted on February 9, 2020 by Alastair Lawrie

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

Submitted via: avpinquiry@parliament.vic.gov.au

Thursday 19 December 2019

To the Committee

Inquiry into Anti-Vilification Protections

Thank you for the opportunity to make a submission on this important subject.

I do so as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, having previously served on the Committee of Management of the Victorian Gay & Lesbian Rights Lobby (2004-05, and 2007).

In this submission, I will primarily focus on term of reference 8: ‘Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act.’

As the Committee is aware, Victoria currently only provides protection against vilification on the basis of two attributes – race (section 7) and religion (section 8) – under the Racial and Religious Tolerance Act 2001 (Vic).

From an LGBTI perspective this is incredibly disappointing, especially because the similar absence of LGBTI anti-vilification protections under Commonwealth law, which only covers race,[i] means that lesbian, gay, bisexual, transgender and intersex Victorians currently have no vilification protections at either level.

This stands in contrast to the laws of several other Australian jurisdictions.

For example, Tasmania protects against ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ sexual orientation,[ii] gender identity[iii] and intersex variations of sex characteristics.[iv]

Tasmania’s best practice legislation also prohibits ‘conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute’, which again includes sexual orientation, gender identity and intersex variations of sex characteristics.[v]

The Australian Capital Territory protects against ‘incite[ment of] hatred toward, revulsion of, serious contempt for, or severe ridicule of’ persons on the basis of gender identity,[vi] intersex status[vii] and sexuality.[viii]

Although I note that intersex advocates have called for protection of the attribute of ‘sex characteristics’,[ix] rather than ‘intersex status’, reflecting both the biological rather than identity-based nature of variations of sex characteristics, and to promote consistency with the Yogyakarta Principles plus 10.[x]

Queensland also prohibits the ‘incite[ment of] hatred towards, serious contempt of, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person of members of the group.’[xi]

Meanwhile, NSW has adopted two separate, and in some ways contradictory, approaches to vilification. It provides civil protection against vilification (which includes ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of’) to binary[xii] transgender people,[xiii] and lesbians and gay men.[xiv]

On the other hand, in 2018 NSW Parliament amended the Crimes Act 1900 to provide that ‘[a] person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence’ and nominated sexual orientation,[xv] gender identity[xvi] and intersex status.[xvii]

Overall, then, LGBTI people are protected against vilification in both Tasmania and the Australian Capital Territory, LGBT people are protected in Queensland, and lesbians, gay men and some trans people have access to civil protection in New South Wales, while all LGBTI people are covered by the narrower criminal offence of ‘publicly threatening or inciting violence’ in that state.

Of course, the fact other jurisdictions have adopted a different approach to this issue is not necessarily a compelling argument that Victoria should do the same. However, I do support such an expansion for two main reasons.

First, in principle, there is no reason why vilification on the basis of race or religion should be treated any differently to vilification on the basis of sexual orientation, gender identity or sex characteristics.

Vilification on any of these attributes is serious, and racial or religious vilification is no more serious than anti-LGBTI vilification. This is especially so given the harm caused by each type of vilification can be severe, and therefore the conduct which contributes to this harm should be prohibited, irrespective of whether it is racist, anti-religious or homophobic, biphobic, transphobic or intersexphobic.

Second, in practice, lesbian, gay, bisexual, transgender and intersex Australians remain exposed to unacceptably high rates of discrimination and vilification on the basis of who they are.

This was particularly demonstrated during the Commonwealth Government’s 2017 Same-Sex Marriage Postal Survey, and its lingering aftermath.

This unnecessary, wasteful and divisive vote on the rights of a minority group encouraged people to ‘have their say’ about LGBTI Australians, and inevitably (and, it should be noted, entirely predictably) stirred up significant amounts of public homophobia, biphobia, transphobia and intersexphobia against us.

Sadly, once the genie of anti-LGBTI bigotry was deliberately let out of the bottle by the Turnbull Liberal-National Government, it will take the rest of us many years, if not decades, of concerted effort to put it back in again.

This can be seen by the ongoing hate-based campaign targeting trans and gender diverse people, and especially trans children, which appears on an almost daily basis in our nation’s newspapers, and elsewhere.

As we enter the 2020s, the homophobia, biphobia, transphobia and intersexphobia whipped up by the Commonwealth Government in the last decade still haunts us, and will likely continue to do so for some time yet.

For both of these reasons, principled and practical, I urge the Victorian Parliament to follow the lead of other jurisdictions and introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics.

Recommendation 1: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of:

sexual orientation
gender identity, and
sex characteristics.

I note that the Racial and Religious Tolerance Amendment Bill 2019, introduced by Fiona Patten MLC, proposes to do exactly that. It also proposes to add gender, and disability, to the list of attributes that would be protected against vilification under that legislation.

While I am not an expert on gender or disability-based vilification, for (at least) the first of the reasons outlined above, I can see no good reason why Victorians should not also be protected against vilification on the basis of these attributes.

Recommendation 2: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of gender and disability.

One final issue I would like to address in this submission also arises through Ms Patten’s Racial and Religious Tolerance Amendment Bill 2019, and specifically relates to proposed amendments to section 24 of the principal Act which creates the offence of serious racial vilification.

These amendments would add the words ‘or recklessly’ to, and remove the words ‘the offender knows’ from, the fault element of this offence.

I support both changes. The first change would help create consistency with the offences established in other jurisdictions (including the recently-introduced NSW Crimes Act 1900 provisions).

The second would remove the ‘offender knows’ subjective test from this offence, which is important because such harmful conduct should be prohibited irrespective of whether the specific offender knew that was the likely outcome.

Recommendation 3: That serious vilification offences in the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit intentionally or recklessly engaging in conduct that is likely to incite hatred, or to threaten, or incite others to threaten, physical harm or harm to property.

Thank you for taking this submission into consideration as part of this inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

Fiona Patten MLC, whose Racial and Religious Tolerance Amendment Bill 2019 would protect LGBTI Victorians against vilification.

Footnotes:

[i] Section 18C Racial Discrimination Act 1975 (Cth).

[ii] Section 19(c) Anti-Discrimination Act 1998 (Tas).

[iii] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[iv] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[v] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[vi] Section 67A(1)(b) Discrimination Act 1991 (ACT).

[vii] Section 67A(1)(d) Discrimination Act 1991 (ACT).

[viii] Section 67A(1)(g) Discrimination Act 1991 (ACT).

[ix] Darlington Statement, March 2017, Article 9: ‘We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’

[x] Which defines sex characteristics as ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ Yogyakarta Principles plus 10, 10 November 2017.

[xi] Section 124A Anti-Discrimination Act 1991 (Qld).

[xii] Because the definition of transgender in section 38A only protects a person:

(a) ‘who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[xiii] Section 38S Anti-Discrimination Act 1977 (NSW).

[xiv] Section 49ZT Anti-Discrimination Act 1977 (NSW).

[xv] Section 93Z(1)(c) Crimes Act 1900 (NSW).

[xvi] Section 93Z(1)(d) Crimes Act 1900 (NSW).

[xvii] Section 93Z(1)(e) Crimes Act 1900 (NSW).

Census 2021 – Count Us In

Posted on January 3, 2020 by Alastair Lawrie

Update:

On Monday 11 February 2020, the Guardian Australia reported that the 2021 Census Regulations had been lodged by the Assistant Treasurer, Michael Sukkar – without any new questions on sexual orientation, gender identity and sex characteristics.

In case it wasn’t clear before this, it is now undeniable that, as far as the Morrison Liberal-National Government is concerned, LGBTI Australians don’t count, and we therefore shouldn’t be counted.

The ramifications of this exclusion will last for most of the 2020s. The next opportunity to include sexual orientation, gender identity and sex characteristics will be the 2026 Census. Data from that Census will be progressively published from 2027 onwards, meaning service-delivery based on that data, in health, education and other community services, is unlikely before 2028.

The decision to effectively erase LGBTI Australians from the Census will be felt for most of the next decade (at least). Shame on the Minister, and Government, who would prefer us to be invisible.

Original Post:

It may not seem all that important right now, with everything else going on, but whether lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are included in the 2021 Census will have a long-term impact on the health of our communities.

The Commonwealth Treasury Department is currently conducting a public consultation on Exposure Draft Census and Statistics Amendment (Statistical Information) Regulations 2019.

Submissions close next Friday, 10 January 2020. If you have the time, please consider making a short submission, asking them to #CountUsIn. More information about how to make your voice heard, from the National LGBTI Health Alliance, is provided below.

Here’s my letter:

Division Head
Macroeconomic Modelling and Policy Division
Treasury
Langton Cres
Parkes ACT 2600

Submitted via: 2021CensusRegulations@treasury.gov.au

Friday 3 January 2020

To Whom It May Concern

Re: Census of Population and Housing

I am writing to you as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, to bring to your attention my personal view about the importance of including questions on sexual orientation, gender identity and intersex status in the 2021 Census.

For me, a census that captures sexual orientation, gender identity and intersex data will enable us all to better manage our health. It is important for governments at Commonwealth and state and territory level, and service providers, to have access to this data, so that I and my family and friends have the same access to targeted health services as all other Australians.

I am aware that the ABS itself asked the Commonwealth Government to consider sexual orientation, gender identity and intersex status questions to be included in the census based on an overwhelming need for this data to be collected.

I also note that in 2017 the Commonwealth Government spent $80.5 million in engaging the ABS to conduct the same-sex marriage law postal survey.

Apparently, asking all Australians to express their opinion about the relationships, and lives, of LGBTI people and their families was acceptable then.

It would be an incredible, and unjustifiable, double-standard to decide that asking people about their sexual orientation, gender identity and intersex status is unacceptable now.

LGBTI people are part of every Australian community, and everyone deserves to be counted.

We count. Our lives count. Our health counts. Our futures count. It’s time to count us in.

I respectfully ask that you reconsider the inclusion of these questions in the 2021 Census.

Yours sincerely,

Alastair Lawrie

Take Action

One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take.

In this case, I strongly encourage you to visit the National LGBTI Health Alliance website, where they have provided a draft template letter on which the one above is based.

Please download it, add your own personal message and lodge it by Friday 10 January 2020. As requested by the Alliance, if you are emailing it, please also copy info@lgbtihealth.org.au and ask for your submission to be made public on the Treasury website.

Make your voice heard. Make sure our community is counted. #CountUsIn2021

ABS

Protecting LGBT Students and Teachers Against Discrimination

Posted on January 6, 2019 by Alastair Lawrie

Update 23 February 2019:

The Senate Legal and Constitutional Affairs Committee handed down its report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 on Thursday 14 February 2019.

Although it is perhaps more accurate to say it handed down three reports. The majority report, by Government Senators, recommended that the Bill – which, as the name suggests, would protect LGBT students in religious schools against discrimination – not be passed. This is a broken promise, after Prime Minister Scott Morrison’s commitment to protect these students in October last year.

Even worse, Coalition members of the Committee recommended that the issue of religious exceptions be referred to the Australian Law Reform Commission for another review. For context, we have already had the Ruddock Religious Freedom Review, a Senate inquiry into the issue of discrimination against LGBT students and teachers last November, and this most recent Senate review.

We don’t need another inquiry, review or report. We just need a Government to take action to protect LGBT students and teachers. Nothing more. Nothing less.

The Labor members of the Committee provided a dissenting report, which (unsurprisingly) called for their Bill to be passed. Importantly, they also rejected all five of the Government’s amendments that would allow discrimination against LGBT students to continue, contrary to the purpose of the legislation (for more, see my original submission to the inquiry below).

On the other hand, Labor Senators also rejected the proposed Greens’ amendment that would remove the Sex Discrimination Act 1984 exception allowing religious schools to discriminate against LGBT teachers. They did restate the ALP’s commitment to protect LGBT teachers in the future, although it is unclear what form this would take.

We will need to keep pressure on Bill Shorten, and the ALP, to protect LGBT teachers and to ensure these protections are not undermined by provisions allowing religious schools to discriminate on ‘ethos and values’.

Finally, the Greens also provided a dissenting report, supporting the ALP Bill, rejecting the Government’s amendments (for the same reasons as Labor) and calling for their own amendment protecting LGBT teachers to be passed.

The Greens have also recommended an urgent review of provisions in the Fair Work Act 2009 (Cth) that allow religious schools to discriminate on the basis of sexual orientation and gender identity.

Overall, then, this was a disappointing Committee Report, with the Government’s proposed referral of the issue to the Australian Law Reform Commission nothing more than a delaying tactic.

It’s important to remember there was always going to be resistance to this change. There will always be some religious schools that want to discriminate against LGBT students and teachers. And there will always be some politicians who want to let them.

It is up to us to continue with this campaign until all schools are safe and nurturing environments for all students, irrespective of their sexual orientation and gender identity. Because our kids are counting on us.

Original submission:

there's no place for discrimination in the classroom-10

Start the new year right, by writing to support the right of LGBT students, teachers and other staff at religious schools to be free from discrimination.

The Senate Standing Committee on Legal and Constitutional Affairs is currently holding an inquiry into Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, and proposed amendments to it.

Full details of this inquiry can be found here.

The most important details are that:

This is our opportunity to call for all schools to be made free from discrimination on the basis of sexual orientation and gender identity
Submissions close on Monday 21 January 2019 (ie two weeks away) and
Once you’ve written yours, it can be uploaded here or emailed to sen@aph.gov.au

**********

If you are looking for some ‘inspiration’ about what to write, here are my suggestions:

Personal stories

If you are, or have been, a student, a family member of a student, or a teacher or other staff member at a religious educational institution (including schools and universities), please share what that experience was like.

This is especially important if you are a lesbian, gay, bisexual, transgender or intersex person, or member of a rainbow family, who has encountered homophobia, biphobia or transphobia at a religious school.

Remember, these examples can range from overt or outright discrimination (such as a student being disciplined, or a teacher being fired or not hired, simply for being LGBT) through to more subtle or insidious forms of mistreatment (being made to feel invisible, having LGBTI content excluded from subjects like health and physical education, or feeling unable to disclose your sexual orientation or gender identity, or information about your partner, to others).

The more stories that we share, the louder our collective voice for change will be.

Importantly, if your submission is deeply personal, you can ask the committee to keep your submission private. From the aph website:

If you do not want your name published on the internet, or if you want your submission to be kept confidential, you should:

Include the word confidential clearly on the front of your submission and provide a reason for your request.
Make sure that your name and contact details are on a separate page and not in the main part of your submission.

Confidential submissions are only read by members of the committee and the secretariat.

Confidential information may be placed in an attachment to the main part of your submission, with a request for the committee to keep the attachment confidential.

The committee will consider your request but you need to know that the committee has the authority to publish any submission.

The committee will contact you if the committee wants to publish something you have asked to be kept confidential.

If you are considering making a confidential submission, you should contact the committee secretariat to discuss this before you send us your submission.

Call for LGBT students to be protected against discrimination

Whether you have attended or worked at a religious school or not, everyone should call for the ability of religious schools to discriminate against lesbian, gay, bisexual and transgender students to be abolished.

Labor’s Bill achieves this outcome, because it would remove both of the existing exceptions in the Commonwealth Sex Discrimination Act 1984 which allow religious schools to do exactly that.[i]

In your submission, you should ask for the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be passed urgently, so that all students can learn in a safe and inclusive environment.

Call for LGBT teachers to be protected against discrimination

One thing Labor’s Bill does not do is remove the exceptions in the Sex Discrimination Act which allow religious schools to discriminate against LGBT teachers and other staff.

This discrimination is also wrong. Teachers should be judged according to the ability to do their jobs, not whether they are heterosexual and cisgender. The billions of dollars of taxpayers’ money that is provided to religious schools each year should not be used to reject teachers and other staff simply for being LGBT.

Most importantly, in order for the classroom to be a truly safe environment for LGBT children, it must be an inclusive one for LGBT adults too.

Employing LGBT teachers means potentially having role models for kids discovering their own sexual orientations or gender identities. On the other hand, if children see teachers being discriminated against just for being lesbian, gay, bisexual or transgender, they will learn the lesson that their school thinks LGBT people are somehow less worthy than other people.

In your submission, you should ask for the Greens amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be supported. These amendments would remove the exceptions in the Sex Discrimination Act that allow religious schools to discriminate against LGBT teachers and other staff.[ii]

However, you should call for the Parliament to make similar amendments to the Commonwealth Fair Work Act 2009 as well, because that legislation also allows religious schools to adversely treat,[iii] or unfairly dismiss,[iv] teachers because of their sexual orientation.

Finally, you could ask the Parliament to take this opportunity to amend the Fair Work Act to protect transgender and intersex people against adverse treatment and unfair dismissal, because they are currently excluded entirely from these provisions.[v]

Call for the Parliament to reject the Government’s proposed amendments

The Morrison Liberal-National Government has released its own proposed amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.

These amendments would allow religious schools to continue to discriminate against LGBT students in three distinct ways.

First, the Government’s amendments would reinstate one of the two current exceptions that allow religious schools to expel or otherwise mistreat students because of their sexual orientation or gender identity.[vi]

Second, the Government’s amendments would insert an entirely new provision allowing religious schools to discriminate against LGBT students as long as it formed part of ‘teaching activity’ – where teaching activity is incredibly broadly defined as ‘any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’[vii]

Third, the Government’s amendments would change the test for whether indirect discrimination is lawful in three differently-worded alternative ways,[viii] but with all three adding consideration of whether a ‘condition, requirement or practice… imposed, or proposed to be imposed [by a religious school is] in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

The Government’s changes are unnecessary, and would introduce unnecessary complexity into the Sex Discrimination Act. None of the four Australian jurisdictions that already protect LGBT students against discrimination (Queensland, Tasmania, the ACT and the Northern Territory)[ix] include similar provisions in their anti-discrimination laws.

Most importantly, the Morrison Liberal-National Government’s proposed amendments fundamentally undermine the purpose of the legislation, by allowing religious schools to continue to discriminate against LGBT students just under a different name.

You should call for the Parliament to reject all of the Government’s proposed amendments to the Bill.

**********

Every student should be able to learn in a safe and inclusive environment, free from discrimination on the basis of their sexual orientation or gender identity.

Every teacher and staff member should be judged on their ability to perform their role, not according to who they love or how they identify.

Parliament has the opportunity to make both a reality in 2019. But, as with so many law reforms before, they won’t act unless we make them.

So, it’s time to get writing.

there's no place for discrimination in the classroom-9

Footnotes:

[i] The Bill repeals subsection 38(3) of the Sex Discrimination Act which specifically allows religious schools to discriminate against LGBT students, as well as limiting the general religious exception in subsection 37(1)(d) by adding a new subsection 37(3):

‘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 education; and

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

[ii] The Greens amendments repeal subsections 38(1) and 38(2) of the Sex Discrimination Act that specifically allow religious schools to discriminate against LGBT teachers and other staff, and contractors, respectively.

It also amends the proposed new subsection 37(3) so that it removes the ability of religious schools to discriminate both in terms of service provision (ie students) and employment.

[iii] Subsection 351(2) of the Fair Work Act 2009 (Cth).

[iv] Subsection 772(2) of the Fair Work Act 2009 (Cth).

[v] For more on this subject, see Unfairness in the Fair Work Act.

[vi] The Government’s amendments remove proposed new subsection 37(3) of the Sex Discrimination Act 1984 (Cth) in Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that limits the operation of the general religious exception in section 37(1)(d) of that Act. Therefore, even if subsection 38(3) is repealed, religious schools would still be able to rely on subsection 37(1)(d) to discriminate against LGBT students.

[vii] The proposed amendment reads as follows:

‘7F Educational institutions established for religious purposes

(1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

(2) In this section:

Teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’

[viii] See amendments KQ 148, KQ 150 and KQ 151, here.

[ix] For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Posted on June 2, 2017 by Alastair Lawrie

Update

The Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 was passed in Queensland Parliament on 10 October 2017, and took effect on 23 October.

This was a historic achievement, meaning the majority of people who have criminal convictions as a result of prohibitions on male homosexual conduct in that state can now apply to have those records expunged.

But it is only a partial victory – because people who were criminalised due to the unequal age of consent, which existed between 1991 and 2016, are not able to apply. That’s because section 18(2)(a) limits relevant offences to where:

“the other person who engaged, or allegedly engaged, in the act of omission constituting the offence –

(i) consented to the act or omission; and

(ii) was 18 years or more at the time the offence was committed or alleged to have been committed.”

This is an incredibly disappointing outcome, exposing men who would not have been convicted but for the homophobic unequal age of consent which operated for a quarter of a century, to many more years of living with unjust convictions on their criminal records. And it means the campaign to expand the expungement scheme must continue.

Update: 15 July 2017

Stop me if you’ve heard this one before.

The Queensland Parliament is considering the issue of the decriminalisation of homosexuality but, rather than treating LGBTI people the same as their cisgender heterosexual counterparts, it discriminates against gay and bisexual men, leaving them with criminal records that they would not have were it not for their sexual orientation.

No, we’re not talking about the Goss Labor Government’s fundamentally flawed decriminalisation Bill in 1990 which, while decriminalising sex between men over the age of 18, imposed an unequal age of consent for anal intercourse – an injustice that was only remedied in September last year.

Instead, we’re talking about 2017, as the Queensland Parliament, and the Palaszczuk Labor Government, appears intent on making the same mistake.

As I wrote in my submission to the Parliamentary Inquiry (see the full text at the bottom of this post), the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 will only deliver justice for some gay and bisexual men affected by past homophobic criminal laws, not all.

For men punished because of the unequal age of consent between 1991 and 2016, and for those who were convicted before 1991 but would not have been had they engaged in penis/vagina intercourse, this legislation simply perpetuates the injustices they have already suffered, leaving them with inappropriate criminal records.

This problem was raised by several people in submissions to the Legal Affairs and Community Safety Committee as part of their inquiry into this Bill (myself included). Unfortunately, rather than listen to the community, Committee members have chosen to listen to the unconvincing arguments put forward by the Department of Justice and Attorney-General (see below for an analysis of their responses on this issue).

In their Report, tabled yesterday (14 July), the Committee recommended only that the legislation be passed; it did not make any recommendations to amend the Bill to ensure that all Queenslanders adversely affected by past criminalisation of homosexuality can apply to have their records expunged.

This Report means it is now highly unlikely the Queensland Parliament will fix the mess created by the provisions of the Bill, a mess that compounds past mistakes and once again means gay and bisexual men are treated worse because of who they are.

This discrimination is enough to invoke a bad case of déjà vu. The only question is, will it take Queensland Parliament another quarter of a century to realise the error of its ways and amend the expungements scheme, in the same way it finally amended the age of consent? Because that is too long to wait for justice, for men who have waited long enough already.

Update: 8 July 2017

Following publication of the 13 submissions received by this inquiry (including mine, reproduced in full below), the Queensland Department of Justice and Attorney-General responded to the issues that had been identified. Their letter can be found at the Inquiry website here.

Given my submission was the first received that raised serious concerns about the failure of the Bill to expunge the convictions of people prosecuted because of the unequal age of consent between 1991 and 2016, as well as the omission of people aged 16 and 17 prior to 1991, the Department addressed these issues in response to my submission (on pages 2-4).

Unfortunately, its response was underwhelming, and in some places seems to have completely missed the point of the expungement scheme.

First, the Department’s weakest argument against including people convicted due to the unequal age of consent between 1991 and 2016 was that “[t]he scheme would cease to be historical in nature and it may be considered inappropriate for such recent convictions to be expunged administratively…”

To which the obvious response is that it should not matter when an injustice occurred – whether it was 1978 or 2008 – it should be remedied.

Second, and of much greater concern, the Department argued that “[e]xtending the scheme to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016 would mean that the scheme may extend to people who are currently serving sentences relevant to those convictions.”

The Department is effectively conceding that there may be people who are currently being punished for offences that would not have applied were it not for Queensland’s discriminatory treatment of anal intercourse for the past quarter of a century. That is not a justification not to extend the scheme – that is a reason to examine those convictions to determine whether they should be immediately overturned.

Third, the Department argued that including convictions between 1991 and 2016 due to the unequal age of consent “would require the decision maker to go behind the exercise of recent prosecutorial discretion”. To support this, the Department specifically cites the Director of Public Prosecution’s Guidelines as they existed at 30 August 2016.

There are two problems with this particular argument:

They are suggesting that people should rely on the ‘discretion’ not to prosecute, not just in recent years but also in the much less accepting (and more homophobic) 1990s. I am surely not the only person who harbours fears that at some point in the past 25 years this ‘discretion’ would have been exercised against gay and bisexual men;

Even the August 2016 guidelines are problematic. They state that “[a] child should not be prosecuted for sexual experimentation involving children of similar ages in consensual activity.” With all due respect, that is not the relevant criteria – the question is whether the people involved would have been convicted had it involved penis/vagina intercourse. Which means that an offence between a 16 or 17 year old and someone aged 18-plus that occurred between 1991 and 2016 should be included (even if that makes some parliamentarians feel uncomfortable).

Fourth, the Department argued that “if the scheme was extended to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016, it would arguably be unfair to continue to restrict the scheme to convictions involving only homosexual activity.”

This is perhaps the only legitimate concern raised by the Department. Although it seems to me that, of the three possible options to deal with this issue, they have chosen the worst. These are:

To leave the scheme as is – which strands some gay and bisexual men without legal address, despite being punished because of laws that Minister for Health Cameron Dick conceded were “a source of discrimination against young people on the basis of their sexual orientation” (in his 2^nd Reading Speech for the legislation that finally repealed the unequal age of consent).

To extend the scheme to gay and bisexual men affected by the unequal age of consent between 1991 and 2016, but not to anal intercourse between men and women. This may be prima facie discriminatory, but it does recognise the disproportionate impact of these laws on same-sex attracted people (who also did not have other lawful options for penetrative intercourse).

To widen the scheme to include non-LGBTI people who were also punished due to the differential treatment of anal intercourse between 1991 and 2016. This may substantially extend the scope of the scheme, but I would argue that it would be preferable to include these offences than to leave some gay and bisexual men with unfair and inappropriate criminal records, for sex offences, for the rest of their lives.

Fifth, and finally, is the worst of the arguments proffered by the Department: “[t]he Department notes that any expansion of the scheme would likely to [sic] increase the cost of the scheme.” That is not a reason to perpetuate injustice against gay and bisexual people who have been persecuted because of their sexual orientation under fundamentally unjust laws – that is a reason to provide additional funding (which, based on the Department’s letter, would likely be relatively modest).

Overall, then, I am extremely disappointed by the Department of Justice and Attorney-General’s response to my submission, which appears to be motivated more by staunchly defending the provisions of the current Bill than in grappling with the fact that, if passed, it would still leave some gay and bisexual men living with the consequences of past injustices.

Hopefully, the members of the Legal Affairs and Community Safety Committee are more persuaded by the submissions of myself, and others such as long-time campaigner John Frame that raised similar concerns, and propose amendments to address these outstanding issues. Their report is due by Friday 14 July, and I will provide a further update based on their recommendations.

Original Post

The Queensland Palaszczuk Labor Government has introduced legislation to establish a process whereby (some) people affected by the historical criminalisation of homosexuality in that state can apply to have those criminal records expunged.

This Bill is currently being considered by the Queensland Parliament Legal Affairs and Community Safety Committee. My submission to their inquiry is published below. For more details on the Bill, and the Committee’s examination of it, click here.

Acting Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

c/- lacsc@parliament.qld.gov.au

Friday 26 May 2017

Dear Committee

Submission re Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Thank you for the opportunity to provide a submission in relation to the above-named Bill.

I support this legislation in principle, given it is aimed at redressing historical injustices experienced by members of the Queensland lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

This Bill builds on the apology, delivered by Premier Annastacia Palaszczuk in Queensland Parliament on 11 May this year, in which she said:

“This Legislative Assembly offers its unreserved and sincere apology to all those persons who suffered from prejudice as a result of the discriminatory laws passed by this House, and we acknowledge that your pain and suffering continues.

“We acknowledge that shame, guilt and secrecy carried by too many for too long.

“Today, in this Legislative Assembly, we place on the record for future generations our deep regret and say to all those affected, we are sorry that the laws of this state, your State, let you down.

“To all those affected we say sorry.”

These noble sentiments were also reflected in the second reading speech for the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 itself given by Attorney-General Yvette D’Ath:

“As this parliament apologises this afternoon, we should never forget that this abuse, this discrimination and this hatred was within our lifetime, and it was done in our name. We have seen important law reform since that time, over many years, in many stages. That includes significant reforms passed in the current Palaszczuk government, some with bipartisan support. Despite these important legislative changes, the pain and anguish caused by that earlier discrimination has never been removed for those affected Queenslanders. I am very proud to be a Labor Attorney-General finishing the important work that the Goss government started, and I am determined to get it right.”

Unfortunately, while I support both of these statements, on a practical level I cannot support the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 in its current form.

That is because the Bill fails to address all relevant historical homosexual convictions, and instead only offers redress for one subset of the people affected by the criminalisation of homosexuality in Queensland.

This failure is based on two key flaws in the proposed expungement scheme.

The first flaw is that the Bill is limited to offences committed before 19 January 1991 – which is when the Criminal Code and Another Act Amendment Act 1990 came into effect.

As noted in the Explanatory Notes for the Bill, this is intended to “maintain the nexus between the proposed expungement scheme and decriminalisation.”

Such a ‘nexus’ would be appropriate if the legislation that implemented decriminalisation was itself non-discriminatory.

However, as current members of the Queensland Parliament are no doubt aware, the Criminal Code and Another Act Amendment Act 1990 was fundamentally unjust, in that it continued to subject anal intercourse to a higher age of consent (18 years) than other forms of sex (16 years).

This discriminatory approach primarily affected the gay and bisexual male community, and meant that for the following 25 years young same-sex attracted men in Queensland were disproportionately exposed to potential criminal sanctions for penetrative intercourse.

This discriminatory approach was only remedied in September last year, with the passage of the Health and Other Legislation Amendment Act 2016. In introducing that legislation, Minister for Health Cameron Dick stated:

“The Goss Labor government in 1990 decriminalised homosexuality, but that government introduced an anal intercourse law. The age of consent for consensual anal intercourse was set at 18 years.

“The expert panel of health experts asked to consider the implications of the current law advised me that the disparity in the age of consent for different sexual activity has adverse impacts on young people and recommended a consistent age of consent. Queensland cannot continue to discriminate between forms of sexual intercourse, particularly when we know that young people feel compelled to withhold information about their sexual history from health practitioners for fear of possible legal consequences, whether for themselves or their partner. This can have serious implications for their medical treatment, particularly as unprotected anal intercourse is the highest risk behaviour for transmission of HIV. It also has the effect of stigmatising same-sex relationships which in itself can be harmful for an individual’s wellbeing.”

Minister Dick concluded his speech by noting that:

“The Palaszczuk government is committed to improving sexual health outcomes for all Queenslanders regardless of their sexual orientation or preferences. The bill demonstrates this by standardising the age of consent for all forms of sexual intercourse, reflecting community expectations and removing a source of discrimination against young people on the basis of their sexual orientation…” [emphasis added].

The Palaszczuk Government was right to identify that an unequal age of consent specifically discriminated against young people on the basis of their homosexuality and bisexuality. They, and the Queensland Parliament more generally, were also right to remedy this injustice by passing the Health and Other Legislation Amendment Act 2016 to finally introduce an equal age of consent.

Which makes it all-the-more puzzling why they have made the wrong decision in limiting the operation of the historical homosexual convictions expungement scheme to offences that occurred before 19 January 1991.

By tying the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 to the ‘act’ of decriminalisation, they have effectively tied the Queensland expungement scheme to legislation that itself was discriminatory.

In doing so, they have developed a scheme that would deliberately exclude people who were charged or convicted for offences between January 1991 and September 2016 who would not have been were it not for their sexual orientation.

Those charges and convictions were also unjust, and that injustice should be addressed through this expungement scheme. To do otherwise – to exclude people adversely affected by the unequal age of consent which existed for a quarter of a century – is simply to perpetuate this discrimination.

It would also leave Queensland out of step with other Australian jurisdictions – with the equivalent NSW scheme allowing people charged or convicted because of the unequal age of consent which operated there between 1984 and 2003 to apply for those records to be expunged. Queensland should follow suit.

Recommendation 1: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions that were caused by the unequal age of consent for anal intercourse between January 1991 and September 2016.

The second, related flaw of this legislation is that, even for criminal offences committed prior to 19 January 1991, the right to apply to have these records expunged is limited to acts in which both parties were aged 18 years or over.

The rationale for this decision was explained in Attorney-General Yvette D’Ath’s second reading speech in the following way:

“[T]he criteria for the expungement of a Criminal Code male homosexual offence in the bill has regard to the age of consent at the date of decriminalisation on 19 January 1991 – that is, 18 years. This retains the expungement scheme’s nexus with the decriminalisation of consensual adult homosexual activity and confirms that the scheme is only applicable to historical charges and convictions. It also ensures that there is no discrimination between people charged or convicted with offences between 1991 and 2016 or people charged before the age of consent for sexual activity other than anal intercourse was changed in Queensland in 1976 from 17 years to 16 years.”

The question of what to do about the relevant age of consent prior to 1991 goes to the heart of the purpose of the expungement scheme.

If the purpose is simply to address offences prior to January 1991 that were decriminalised following the passage of the Criminal Code and Another Act Amendment Act 1990, then the approach adopted in the legislation, which limits the relevant age of consent to 18 years for all offences, admittedly has some internal consistency.

However, if the purpose of the expungement scheme is instead to provide redress to people who were charged or convicted primarily because of their sexual orientation, then I would argue that it must go further.

On a practical level, if this legislation is aimed at removing the stain of homophobia and biphobia from past laws, and above all from the criminal records of those who bore their impact, then the relevant test should not be how those acts were treated in 26-year-old legislation that, as we have seen above, was itself inherently flawed.

Instead, I believe the test should be whether the relevant act would have been criminalised if it involved consensual intercourse between a man and a woman, and specifically penis/vagina sex. Such a test goes to the core issue, which is discrimination – that the law treated gay and bisexual men differently to heterosexual people.

If this principle is adopted, then the scheme would allow people to apply with respect to:

Charges and convictions where both parties were 17 and over prior to 1976 (when the age of consent for penis/vagina sex was reduced to 16) and
Charges and convictions where both parties were 16 and over from 1976 onwards.

In this way, the legislation would actually better reflect the view, expressed in the Explanatory Notes, that:

“It is also an acknowledgment that the age of consent has changed over the years in accordance with changing societal values and expectations…”

That is because it would be based on changing societal attitudes to the age of consent for heterosexual, non-anal, intercourse, and therefore removed from discriminatory attitudes towards anal intercourse, and especially intercourse between men.

Further, if this principle was adopted, it would also provide philosophical consistency between those offences before January 1991 and those between January 1991 and September 2016 – provided Recommendation 1 is also adopted, the relevant age of consent would be 16 years for both.

Finally, this approach would also be more consistent with the position adopted by other jurisdictions – with section 105G of Victoria’s Sentencing Act 1991 setting out the relevant test as:

“on the balance of probabilities, both of the following tests are satisfied in relation to the entitled person:

(i) the entitled person would not have been charged with the historical homosexual offence but for the fact that the entitled person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature;

(ii) that conduct, if engaged in by the entitled person at the time of the making of the application, would not constitute an offence under the law of Victoria.”

Queensland should similarly ensure that the primary purpose of its expungement scheme is to provide redress for gay and bisexual men who were charged or convicted for offences for penetrative intercourse that would not have applied to penis/vagina sex between men and women.

Therefore, the relevant age of consent should be the same as that which applied to heterosexual, non-anal, sex: 17 before 1976, and 16 from that point onwards.

Recommendation 2: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions for offences where both parties were 17 and over before 1976, and 16 and over from 1976 onwards.

As stated earlier, I support the stated intention of the Queensland Government in developing, and introducing, this legislation: to provide redress for past injustices against members of the LGBTI community.

However, as I have explained above, I believe this admirable objective is imperfectly realised in the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 as currently drafted.

That is because it would only achieve justice for some of the people adversely impacted by the past criminalisation of male same-sex activity, and not all.

If the purpose of the expungement scheme is to provide redress for the homophobic and biphobic application of the criminal law – and I suggest that this is the most appropriate objective – then it should apply to:

Offences between January 1991 and September 2016 where both people were aged 16 and over
Offences between 1976 and 1991 where both people were aged 16 and over, and
Offences before 1976 where both people were aged 17 and over.

In my view, this would be the closest approximation of treating all people – LGBTI and non-LGBTI alike – equally.

It would also ensure that more people, who have been subject to discrimination on the basis of their sexual orientation, and who continue to experience the consequences of this mistreatment, have access to expungement.

As observed by Attorney-General Yvette D’Ath in her second reading speech:

“We know that this is a deeply hurtful and deeply personal issue for many Queenslanders forced to live with the impact of discriminatory laws for far too long. We know that past convictions have meant there are various circumstances in which convictions or charges for criminal offences have been required to be disclosed.

“Forcing the repeated disclosure of those convictions and charges to potential employers, public administrators and others has caused people inconvenience and embarrassment and, worst of all, has forced them to continually relive the trauma associated with their arrest, charge and conviction. This has inhibited people from pursuing employment opportunities, volunteering in their communities and fully participating in civic life right up until today. It hurt those individuals, affected their friends and family, and prevented their full involvement in, and contribution to, our community. In doing so, it not only impacted individuals; it lessened our community more broadly.”

I wholeheartedly agree. But I also humbly suggest that these statements don’t just apply to ‘adults’ charged or convicted for offences committed before 19 January 1991 – they also describe the injustice experienced by people who suffered because of the discriminatory age of consent between January 1991 and September 2016.

Similarly, these sentiments reflect the adverse treatment of gay and bisexual men charged or convicted for penetrative intercourse before January 1991 who would not have been had it involved penis/vagina sex.

Both of these groups deserve justice too. That can and should be delivered through these two amendments to the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017, changes that strive to fully remove the stain of homophobia and biphobia from Queensland’s laws, thereby lessening the awful impact of discrimination on generations of gay and bisexual men.

Thank you for taking this submission into consideration as part of this inquiry. If the Committee would like to clarify any of the above, or to request additional information, please contact me at the details provided.

Sincerely

Alastair Lawrie

Premier Palaszczuk’s apology was welcome, but the Bill which gives it practical effect should cover all people adversely affected by historical convictions, not just some.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 5: Discrimination in Employment

Posted on May 28, 2017 by Alastair Lawrie

This post is the fifth in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to four questions, asking whether they have ever experienced discrimination in employment, whether any of this discrimination occurred in the past 12 months, whether this discrimination related to employment by religious organisations and to provide an example of the discrimination that they experienced.

The responses to these questions confirm that too many LGBTIQ Australians have to worry about discrimination on the basis of their sexual orientation, gender identity and intersex status in the workplace on top of the usual career and financial worries.

The question about whether any of this discrimination occurred in relation to employment by a religious organisation is important because of the existence of special rights to discriminate for these employers in most states and territories, leaving LGBTI employees in these circumstances without any legal redress.

I also encourage you to read the examples provided in response to question four, which reveal some of the many different types of employment-related discrimination that LGBTIQ people have encountered.

The State of Homophobia, Biphobia & Transphobia-11

Question 1: Have you ever experienced discrimination because of your sexual orientation, gender identity or intersex status in relation to employment (including as an employee, contract worker or job applicant)?

Question 2: Has one or more instances of this employment-related discrimination occurred in the past 12 months?

Question 3: Did any of this discrimination occur in relation to employment, or an application for employment, with a religious organisation?

Of the 1,622 people who answered the first question, 491 – or 30% – said they had experienced employment-related discrimination at some point in their lives.

Disturbingly, 235 survey respondents[ii] reported experiencing anti-LGBTIQ discrimination in employment in the past 12 months alone. That is 14.5% of the total, or 1 in every 7 people who completed the survey.

The proportion that reported employment-related discrimination by religious organisations was 6.1%[iii]. This is thankfully much lower than the proportion that had reported discrimination by religious schools (in Survey Results, Part 4) – although that is likely a reflection of the expansive reach of religious schools, and comparatively smaller employment footprint of religious bodies.

Nevertheless, most of those 6% probably had no recourse to anti-discrimination protections given the excessive, and unjustified, exceptions provided to religious organisations in most Australian jurisdictions.

LGBTIQ Status

There were some significant differences in reported employment-related discrimination between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

Lesbian

31.6%[iv] reported employment-related discrimination at some point
15.3%[v] experienced at least one instance in the last 12 months
7.8%[vi] experienced employment-related discrimination by a religious organisation

Gay

34.3%[vii] reported employment-related discrimination at some point
13%[viii] experienced at least one instance in the last 12 months
5.9%[ix] experienced employment-related discrimination by a religious organisation

Bisexual

20.3%[x] reported employment-related discrimination at some point
11.1%[xi] experienced at least one instance in the last 12 months
4.3%[xii] experienced employment-related discrimination by a religious organisation

Transgender

44.4%[xiii] reported employment-related discrimination at some point
29.2%[xiv] experienced at least one instance in the last 12 months
6.8%[xv] experienced employment-related discrimination by a religious organisation

Intersex

73.3%[xvi] reported employment-related discrimination at some point
40%[xvii] experienced at least one instance in the last 12 months
20%[xviii] experienced employment-related discrimination by a religious organisation

Queer

30.3%[xix] reported employment-related discrimination at some point
16.9%[xx] experienced at least one instance in the last 12 months
6%[xxi] experienced employment-related discrimination by a religious organisation

LGBTIQ Category	Experienced anti-LGBTIQ discrimination in employment (%)?
LGBTIQ Category	Ever	Last 12 months	By religious organisation
Lesbian	31.6	15.3	7.8
Gay	34.3	13	5.9
Bisexual	20.3	11.1	4.3
Transgender	44.4	29.2	6.8
Intersex	73.3	40	20
Queer	30.3	16.9	6

The highest rates for all three were from intersex respondents, although the small sample size for that group (n=15) means those figures should be treated with some caution.

Of the other groups, there was a large degree of consistency, with two main exceptions:

Bisexual respondents reported significantly lower rates of employment-related discrimination in all three areas (ever, last 12 months and by religious organisations), and
Transgender respondents reported significantly higher rates of lifetime employment-related discrimination, and particularly in the last 12 months (although, interestingly, not in terms of discrimination by religious organisations).

Taking a closer look at the trans cohort, and in particular respondents who identified as both trans and another LGBQ category, the figures[xxii] were as follows:

Trans and lesbian: 37.2%[xxiii] ever, and 25.6% in the last 12 months

Trans and gay: 47.4%[xxiv] ever, and 28% in the last 12 months

Trans and bisexual: 36.1%[xxv] ever, and 24.6% in the last 12 months, and

Trans and queer: 42.2%[xxvi] ever, and 25.9% in the last 12 months.

While there was little variation in terms of discrimination over the past 12 months (at a disturbingly high 1-in-4 across all groups), trans and queer, and especially trans and gay respondents were more likely to report lifetime discrimination in employment than the other two groups.

Overall, then, while lesbian, gay and queer people reported close-to-(the LGBTIQ)-average levels of employment-related discrimination across the board, bisexual respondents reported lower rates.

On the other hand, intersex and transgender respondents were particularly affected by discrimination in employment, with people who were both trans and gay and (to a lesser extent) trans and queer more likely to report lifetime discrimination.

Aboriginal and Torres Strait Islander People

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for all three questions than for their non-Indigenous counterparts, although thankfully in relation to discrimination in the past 12 months and by religious organisations these rates were only slightly elevated:

37.9%[xxvii] reported employment-related discrimination at some point (compared to 30% of non-Indigenous people)
15.5%[xxviii] experienced at least one instance in the past 12 months (compared to 14.5% of non-Indigenous people) and
6.9%[xxix] experienced employment-related discrimination by a religious organisation (compared to 6.1% of non-Indigenous people).

	Experienced anti-LGBTIQ discrimination in employment (%)?
	Ever	Last 12 months	By religious organisation
Aboriginal and/or Torres Strait Islander	37.9	15.5	6.9
Non-Indigenous	30	14.5	6.1

Age

These results are potentially the most interesting of this post:

Aged 24 and under

20.9%[xxx] reported employment-related discrimination at some point
13.8%[xxxi] experienced at least one instance in the past 12 months
3.8%[xxxii] experienced employment-related discrimination by a religious organisation

25 to 44

36.9%[xxxiii] reported employment-related discrimination at some point
16.2%[xxxiv] experienced at least one instance in the past 12 months
7%[xxxv] experienced employment-related discrimination by a religious organisation

45 to 64

48.5%[xxxvi] reported employment-related discrimination at some point
16.1%[xxxvii] experienced at least one instance in the past 12 months
11.3%[xxxviii] experienced employment-related discrimination by a religious organisation

65 and over

41.9%[xxxix] reported employment-related discrimination at some point
None experienced any instance in the past 12 months
16.1%[xl] reported discrimination at a religious school or college

Age cohort	Experienced anti-LGBTIQ discrimination in employment (%)?
Age cohort	Ever	Last 12 months	By religious organisation
24 and under	20.9	13.8	3.8
25 to 44	36.9	16.2	7
45 to 64	48.5	16.1	11.3
65 and over	41.9	0	16.1

Young people obviously have less employment history, and therefore the lower rates of reported lifetime discrimination are perhaps unsurprising. However, the fact that almost 1-in-7 suffered employment-related discrimination during the past 12 months alone, when a significant share would not even be in the workforce at all, is shocking.

Lifetime rates of discrimination then increase for the next two age groups, peaking at almost 1-in-2 for LGBTIQ people aged 45 to 64. In effect, just as many people in this cohort have experienced discrimination in employment as those who have escaped its impact – another remarkable statistic.

Perhaps just as depressing is the fact that for both people aged 25 to 44, and 45 to 64, the rates of recent anti-LGBTIQ prejudice in employment were roughly the same – at a time when they should be more ‘secure’ in their careers, almost 1-in-6 experienced employment related discrimination in the last year alone.

State or Territory of Residence

The final demographic category according to which I have analysed the survey results is the state or territory of residence:

New South Wales

28.7%[xli] reported employment-related discrimination at some point
13.4%[xlii] experienced at least one instance in the last 12 months
5.7%[xliii] experienced employment-related discrimination by a religious organisation

Victoria

33%[xliv] reported employment-related discrimination at some point
14.2%[xlv] experienced at least one instance in the last 12 months
6.6%[xlvi] experienced employment-related discrimination by a religious organisation

Queensland

36.6%[xlvii] reported employment-related discrimination at some point
17.5%[xlviii] experienced at least one instance in the last 12 months
6.9%[xlix] experienced employment-related discrimination by a religious organisation

Western Australia

32.7%[l] reported employment-related discrimination at some point
17.3%[li] experienced at least one instance in the last 12 months
5.3%[lii] experienced employment-related discrimination by a religious organisation

South Australia

26.3%[liii] reported employment-related discrimination at some point
15.8%[liv] experienced at least one instance in the last 12 months
7.5%[lv] experienced employment-related discrimination by a religious organisation

Tasmania

20.4%[lvi] reported employment-related discrimination at some point
9.3%[lvii] experienced at least one instance in the last 12 months
3.7%[lviii] experienced employment-related discrimination by a religious organisation

Australian Capital Territory

19.6%[lix] reported employment-related discrimination at some point
14.3%[lx] experienced at least one instance in the last 12 months
3.6%[lxi] experienced employment-related discrimination by a religious organisation

Northern Territory

35%[lxii] reported employment-related discrimination at some point
10%[lxiii] experienced at least one instance in the last 12 months
15%[lxiv] experienced employment-related discrimination by a religious organisation

State or territory	Experienced anti-LGBTIQ discrimination in employment (%)?
State or territory	Ever	Last 12 months	By religious organisation
NSW	28.7	13.4	5.7
Victoria	33	14.2	6.6
Queensland	36.6	17.5	6.9
WA	32.7	17.3	5.3
SA	26.3	15.8	7.5
Tasmania	20.4	9.3	3.7
ACT	19.6	14.3	3.6
NT	35	10	15

These results were largely consistent across state and territory boundaries (thus lending weight to the overall figures, discussed earlier).

Tasmania and the ACT reported low lifetime rates of employment-related discrimination, with Queensland recording the highest rates (alongside the Northern Territory, although note the latter’s small sample size, n=20).

Queensland and Western Australia reported higher levels of anti-LGBTIQ prejudice in the workplace during the last year – more than 1-in-6 employees reporting recent discrimination. Tasmania (and the Northern Territory) reported the lowest rates – but that nevertheless reflected the fact 1-in-10 LGBTIQ people were discriminated against in 2016 alone.

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Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to employment [Optional]:

This question allowed respondents to provide examples of the anti-LGBTIQ discrimination they had experienced and, just as with previous survey results, these comments are often confronting to read.

A lightly-edited[lxv] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to employment – can be found at the following link:

question 4 examples of discrimination in employment

These answers demonstrate a range of different ways in which LGBTIQ people were mistreated in comparison to cisgender heterosexual employees, including:

Being refused employment

“I was told “we don’t hire faggy trans here, or anywhere in this town. If you come back in this shop, we’ll shoot you.””

“I was hired as CEO for a charity. After three interviews, a psych test and a video presentation, I was told I was the leading candidate by a mile. We negotiated start date and salary. As part of the process, I disclosed I was married to a man. That disclosure happened at 305pm on a Monday. At 740am Tuesday, I received an email advising me that the offer was withdrawn. They, of course, did not say it was because I was gay. I, apparently, did not demonstrate sufficient interest in the job.”

“Denied a job based on cultural reasons – sexuality not part of our culture therefore cannot teach about said culture. Offer of employment rescinded.”

“Got a job interview but as soon as they saw that I was a dyke I didn’t even get a chance to speak to them they acted awkward and uncomfortable and said I wouldn’t suit the job.”

Being fired from employment

“when they found i was homosexual i was sacked from my position as bar attendant in a league club”

“Refused employment because of my transgender status, the supervisor found a reason for dismissal on day one and asked what dose oestrogen I was on as my voice is deep and upsetting my patients”

Losing shifts, especially in casual or part-time employment

“My old maccas got a new restaurant manager who hated me because of it and stopped giving me shifts.”

“At my last job my employer found out I was a lesbian and coincidentally I stopped receiving any shifts.”

“I was in a casual position, the moment I began to transition however, I was shoved sideways and out the door. No more hours.”

Contracts not being renewed

“My contract was not renewed because I am gay”

“I believe that when my homophobic boss found out I was gay, she discontinued my contract”

Being denied other employee entitlements

“I wasn’t allowed to nominate my partner to receive my superannuation in the event of my death.”

Some survey respondents indicated they were punished because of fears (real or perceived) that clients would react badly to their sexual orientation or gender identity:

“I have been turned down for some jobs where I would be dealing with the public in hospitality because I was a non passing trans woman.”

“I had a job interview with an organisation specialising in disability support in the Midland area (Western Australia), to work as a disability support officer. I had already done exactly the same work for about a year with two other similar organisations which both wanted me to take on more hours. Because those organisations were both a long drive from where I lived I wanted to change to a closer employer. At the end of the interview one of the two interviewers said they could not employ a transgender person because their clients would not accept me. Funny that, their clients must have been very different from the other clients who accepted me without question.”

“Clients have refused to hire me and have been open about it being related to my sexuality. My clients’ clients have been very vocal and made complaints about hiring me because of my work with young people and their sexuality/gender identity/expression”

For some, workplace homophobia, biphobia, transphobia or intersexphobia was explained by a need to ‘protect’ children:

“I was sacked in 1987 because I was gay and working as a swimming teacher with children. Despite my full accreditation this was perceived to be inappropriate. I had no resources to take legal action as I was just 19, from a poor background and despite being the regional swimming champion the community had turned against me.”

“One employer was so uncomfortable with my sexuality that he would not allow his 3 daughters to have contact with me despite bringing them into the office frequently.”

“In 2012 my boss suggested that we have 2 Christmas dinners. One for people with kids, and a separate one with just me and the 2 bosses because “it’s not appropriate to allow a gay man near the kids of other staff members”. I worked at an adult store (sex shop), where I thought I’d be accepted by open minds. I was wrong.”

“I was doing work with teenagers at my church’s youth group, but when I refused to hide my sexuality I was told that I was being a bad influence on the kids and would let the devil into their lives and condemn them to damnation. I was no longer allowed to work with the teenagers.”

This last example points to a much larger issue – employment-related discrimination by religious organisations, as evidenced by the following responses:

“I was a charge nurse of an operating suite that had successfully turned around the fortunes of a religious based hospital: a new manager was appointed that decided to “root out’ all the homosexuals working in the organisation.”

“I have been asked to sign a document that guarantees my not wilfully “sinning” (listing homosexual acts as one of those sins) in order to be considered for employment at a religious school.”

“After completing my course with results and references from teachers and clinical placements which were far superior to other students, I received no interviews or call backs from employers from religious organisations. I did find work at a private company in my field and am doing well in my job. I feel like my talents and abilities were denied to the clients of these religious employers because of my gender identity and my employment options were severely limited.”

“I work as a nurse at a religious based hospital and I experience bullying/ homophobic remarks frequently at work”

“company bought out by exclusive brethren, all gays got sacked, was obvious, but they got away with it. “company restructure”…”

“I was employed by the Salvation Army. They told me not to have a photo of me and my partner on my desk even though all the Het people had their photos on their desks. I was then told they accept me being a Lesbian provided I’m not a practicing Lesbian. They put a private detective on me and harassed me out of my job.”

“I was required to resign my job in 2006 when I came out as gay because my employer was religious. The job had only tangential connection to his religion. I chose not to fight the discrimination – I had lost the heart to work there any more any way. I was then unemployed for 8 months.”

“Before I moved into my own practice, I was working in a Baptist school on a maternity leave position. The position then became a permanent role. My manager wanted me to apply and she put my name forward. They pretty much told her that they did not want me in the role because of my “sexuality”…”

“Many years ago I won a job in a religious school, was offered the job and then the offer was withdrawn with the explanation that I would not fit the culture.”

The public service was not exempt from examples of anti-LGBTIQ discrimination (although some were more historical than others):

“Being told my sexuality would count against me in an interview for a public sector position.”

“In 2012 I was appointed as [senior position] in the [redacted] government. It was a high level and high profile appointment. The Deputy Secretary of the Department who appointed me, wrongly informed the Secretary (i.e. CEO) of the Department that I was gay, in the period when I was coming on board in the role. His response? He told the Dep Sec “I hope he’s not going to flaunt it”. This from one of the highest paid public servants in the entire public service in [redacted] – and the very person who was supposed to safeguard the rights of me and all his other employees. Unbelievable!”

“In the early 1990s, I was working in the Commonwealth Public Service in Sydney. I applied for a job at a higher level and was accepted for interview. I was told that although I had come first in the selection process, the job was going to be given to the second-rated candidate because as he was a “family man” he deserved the promotion (and increase in income) more than I did.”

“Face significant formal (policy) and informal (cultural attitudes) discrimination in the workplace as an ADF member. Whilst this is improving, it is wrong to say that I am not discriminated against – e.g. placed in the wrong accommodation area, having to adhere to binary uniform codes, etc.”

As suggested by the statistics earlier, transgender respondents provided a range of examples of workplace discrimination:

“Very difficult to apply for job when all experience and jobs were held under previous identity”

“I was told that because I wasn’t using my legal name in my application, I couldn’t be input into their system, and hence did not receive an interview.”

“After losing my job, at every interview I’ve been told I ‘got the job’, and once they receive my legal documents and tax file number they never get back to me. At one interview, they told me that my gender identity was a ‘mental illness’ and they needed a doctor’s note before I could work.”

“HR seemed to take me seriously at first but whenever I would make a small mistake she would blame it on my transition saying that I was a different and less capable person (primarily she blamed hormone therapy). Most of the time she would talk about me to other people and I needed to quit that job for my own mental health.”

“Employers felt uncomfortable with my gender identity and asked me not to wear a binder at work. I’ve started presenting as only female at work now. It’s killing me”

“Despite the fact I had a name tag that said Adam and had introduced myself as trans, I was constantly called she. I complained to a manager and it happened again, in a group chat to all employees and managers I yet again said in the kindest way that I do wish to be respected and not misgendered and later that night and from then on was still misgendered.”

“Refusal to change name in email system. Misgendering during heated discussions (seemingly deliberate). Office doesn’t have gender-neutral toilets, asked to use toilets of assigned gender. Could go on…”

“When I finally told my work I was Transitioning I was made to feel an outcast and I finally left the position”

“My work requires i wear a male uniform regardless of my gender identity. I didn’t get a choice of what gender uniform. Only got to choose the size”

Disturbingly, some survey respondents reported complaining about the anti-LGBTIQ conduct they experienced, but then no (or insufficient) action being taken:

“I have also been the subject of religious based hate speech in a non religious school in the lunch room and that was let slide despite my protestations.”

“Gay and AIDS jokes being made, and then on one occasion when i complained to the manager, the manager made me stay home whilst she investigated the complaint, which made me feel as if I was being punished and not the offender.”

A few respondents noted the difficulty of proving homophobic discrimination:

“It’s really hard to explain, you know when people are making decisions about you without actually saying out loud it’s homophobia. It can be very obscure & hard to prove, but its there alright.”

“I can’t prove it but have a strong suspicion my position was made redundant because my boss found out I was gay”

This final comment explicitly describes discrimination by religious organisations, the fact that it remains completely lawful in most circumstances, and the impact that this has:

“This is an area that I get upset about, especially working for a religious organisation. The invisibility and intolerance by some people is hard to bear, especially knowing that religious organisations are exempt from the Anti-Discrimination Act. Living with the fear that if management realise you are gay and sack you for being gay – this is TOTALLY LEGAL. This is totally unjust and disgraceful that anti-discrimination law actually endorses and permits discrimination. I recently had a new manager who, though looking cool, held some very conservative views. I didn’t dare sound him out on gay issues, because I would have been lectured that I was an abomination for being gay (as other people have told me). This leads me to not reveal my true identity at work and to live in some fear of discrimination (knowing the law does not protect me)”

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Conclusion

The results of these four questions have confirmed that homophobic, biphobic, transphobic and intersexphobic discrimination in employment is relatively widespread, and has a significant impact on lesbian, gay, bisexual, transgender, intersex and queer Australians.

This includes 3 in every 10 respondents people reporting lifetime experience of such discrimination, with 1 in 7 reporting at least one instance of anti-LGBTIQ discrimination in employment in the last 12 months alone.

Some groups within the community reported even higher lifetime rates than this already high average, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 45 to 64 particularly affected.

While the rates of discrimination by religious organisations were comparatively low, this is likely explained by the lower numbers of people employed in this sector (especially compared to the far higher proportion of students in religious schools).

The personal examples of employment-related discrimination shared in response to question 4 demonstrate the many different forms such prejudice can take, with a particular focus on transphobia, and discrimination by religious organisations (noting that such mistreatment is entirely lawful in most jurisdictions due to religious exceptions to anti-discrimination laws).

As noted at the beginning of this post, this has been the fifth in my series of six articles reporting the results of my The State of Homophobia, Biphobia and Transphobia survey. The remaining article, which will focus on discrimination in health and other areas, will be published within the next week.

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

QLife, Australia’s national telephone and web counselling and referral service for LGBTI people.

Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

Part 3: Where Discriminatory Comments Occur and Their Impact

Part 4: Discrimination in Education

[ii] 490 people responded to question 2: 235 yes/255 no.

[iii] 490 people responded to question 3: 99 yes/391 no.

[iv] 320 people responded to question 1: 101 yes/219 no.

[v] 49 respondents.

[vi] 35 respondents.

[vii] 629 people responded to question 1: 216 yes/413 no.

[viii] 82 respondents.

[ix] 37 respondents.

[x] 513 people responded to question 1: 104 yes/409 no.

[xi] 57 respondents.

[xii] 22 respondents.

[xiii] 367 people responded to question 1: 163 yes/204 no.

[xiv] 107 respondents.

[xv] 62 respondents.

[xvi] 15 people responded to question 1: 11 yes/4 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xvii] 6 respondents.

[xviii] 3 respondents.

[xix] 485 people responded to question 1: 147 yes/338 no.

[xx] 82 respondents.

[xxi] 29 respondents.

[xxii] I have excluded the figures for discrimination by religious employers, which ranged from 1.8% for trans and gay, to 8.1% for trans and queer, with trans and lesbian, and trans and bisexual, sitting in the middle.

[xxiii] 43 respondents total, with 16 yes to question 1 and 11 yes to question 2.

[xxiv] 57 respondents total, with 27 yes to question 1 and 16 yes to question 2.

[xxv] 122 respondents total, with 44 yes to question1 and 30 yes to question 2.

[xxvi] 185 respondents total, with 78 yes to question 1 and 48 yes to question 2.

[xxvii] 58 people responded to question 1: 22 yes/36 no.

[xxviii] 9 respondents.

[xxix] 4 respondents.

[xxx] 871 people responded to question 1: 182 yes/689 no.

[xxxi] 120 respondents.

[xxxii] 33 respondents.

[xxxiii] 431 people responded to question 1: 159 yes/272 no.

[xxxiv] 70 respondents.

[xxxv] 30 respondents.

[xxxvi] 274 people responded to question 1: 133 yes/141 no.

[xxxvii] 44 respondents.

[xxxviii] 31 respondents.

[xxxix] 31 people responded to question 1: 13 yes/18 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 5 respondents.

[xli] 530 people responded to question 1: 152 yes/378 no.

[xlii] 71 respondents.

[xliii] 30 respondents.

[xliv] 379 people responded to question 1: 125 yes/254 no.

[xlv] 54 respondents.

[xlvi] 25 respondents.

[xlvii] 246 people responded to question 1: 90 yes/156 no.

[xlviii] 43 respondents.

[xlix] 17 respondents.

[l] 150 people responded to question 1: 49 yes/101 no.

[li] 26 respondents.

[lii] 8 respondents.

[liii] 133 people responded to question 1: 35 yes/98 no.

[liv] 21 respondents.

[lv] 10 respondents.

[lvi] 108 people responded to question 1: 22 yes/86 no.

[lvii] 10 respondents.

[lviii] 4 respondents.

[lix] 56 people responded to question 1: 11 yes/45 no.

[lx] 8 respondents.

[lxi] 2 respondents.

[lxii] 20 people responded to question 1: 7 yes/13 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiii] 2 respondents.

[lxiv] 3 respondents.

[lxv] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

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