Every Student. Every School. Submission on Draft NSW Personal Development, Health and Physical Education (PDHPE) K-10 Syllabus

There's no place for discrimination in the classroom-6

The NSW Education Standards Authority is currently undertaking public consultations about its draft Personal Development, Health and Physical Education (PDHPE) K-10 Syllabus.

Unfortunately, as you will see below in my submission, the Syllabus as drafted does not include LGBTI students, or content that is relevant to their needs.

Written submissions are due by Friday 5 May 2017. To find out more about the consultation process, and how you can write your own submission to support an inclusive PDHPE Syllabus, go here.

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Dominique Sidaros

Senior Curriculum Officer, PDHPE

NSW Education Standards Authority

GPO Box 5300

Sydney NSW 2001

dominique.sidaros@nesa.nsw.edu.au

 

Wednesday 3 May 2017

 

Dear Ms Sidaros

 

Submission on Draft NSW PDHPE K-10 Syllabus

 

Thank you for the opportunity to provide a submission about the draft NSW Personal Development, Health and Physical Education (PDHPE) K-10 Syllabus.

 

This is a personal submission, reflecting my interest in this issue as an advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and builds on my previous submissions to the Australian Curriculum, Assessment and Reporting Authority (ACARA) regarding its development of the national Health & Physical Education (HPE) curriculum.

 

This submission is guided by one principle above all else:

 

Any student, in any school, could be lesbian, gay, bisexual, transgender or intersex (LGBTI). Therefore, the Government has a responsibility to ensure that every student, in every school, is taught a Personal Development, Health and Physical Education (PDHPE) Syllabus that is inclusive of LGBTI students, and features content that is relevant to their needs.

 

This principle applies irrespective of the type of school involved, whether that is government, religious or otherwise independent. Importantly, the best interests of these LGBTI young people also take precedence over the views of other groups, including parents, parliamentarians, religious groups or the media.

 

Unfortunately, the NSW PDHPE K-10 Syllabus as drafted manifestly does not meet the needs of LGBTI students. It is not inclusive of students of diverse sexual orientations and/or gender identities, does not promote the acceptance of all students no matter who they are, and fails to provide adequate sexual health education for students who are not cisgender and/or heterosexual.

 

Disappointingly, some of the few occasions where the draft PDHPE Syllabus does attempt to include relevant content have been made optional (because it follows the words ‘for example’ or ‘eg’), with individual schools and teachers free to teach, or not teach, this content, depending on their own view and not the best interests of the students.

 

In this submission I will make a number of recommendations to improve the PDHPE K-10 Syllabus by making it explicitly inclusive of LGBTI students, and ensuring that they receive information that is relevant to their needs. These recommendations will be organised around the following five main areas:

 

  • Terminology
  • Inclusive Information
  • Acceptance & Anti-Bullying
  • Sexual Health Education
  • Life Skills

 

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Terminology

 

The problems with the draft PDHPE K-10 begin with the terminology that is used, and not used, throughout the document, and particularly in the Glossary on pages 132 to 139.

 

For example, the document includes the words lesbian, gay, bisexual, transgender, intersex and queer exactly once each – all in the same dot point on page 97, in Stage 5:

 

“analyse how societal norms, stereotypes and expectations influence the way young people think, behave and act in relation to their own and others’ health, safety and wellbeing eg Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) health, people from culturally and linguistically diverse (CALD) backgrounds.”

 

That’s it. These terms are not used at any other point in the Syllabus, nor are they defined in the Glossary. Worse, because the words above immediately follow the use of ‘eg’, whether LGBTIQ health is mentioned in even this cursory way is entirely dependent on the views of the teacher and/or school involved.

 

As a result, the PDHPE Syllabus as drafted could mean many, if not the majority of, NSW students complete Year 10 having never heard the words lesbian, gay, bisexual, transgender or intersex used in this Syllabus, let alone having them appropriately explained. This omission is negligent, and will be detrimental to the health of future generations of young people.

 

Recommendation 1: The Glossary must include definitions of lesbian, gay, bisexual, transgender and intersex.

 

The almost complete absence of the words lesbian, gay, bisexual, transgender and intersex from the Syllabus is compounded by the, in most cases, exclusionary definitions provided for the terms that are included in the Glossary.

 

This includes the definition of ‘sexuality’ on page 138:

 

“A central aspect of being human throughout life. It is influenced by an interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors. It is experienced and expressed in thoughts, feelings, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships.”

 

In some respects, this is an incredibly ‘inclusive’ definition, acknowledging the wide range of factors that can contribute to an individual’s ‘sexuality’. On the other hand, it is so vague that it doesn’t actually include differences in sexual orientation, from heterosexual (which is not included in the Syllabus either) to bisexual and homosexual or same-sex attracted.

 

To remedy this, an additional definition should be added for ‘sexual orientation’, one that explicitly includes the words heterosexual, lesbian, gay and bisexual (and, for the latter three, is linked to the newly-added definitions of these terms).

 

Recommendation 2: The Glossary should include a definition of ‘sexual orientation’, with links to the terms lesbian, gay and bisexual.

 

In contrast to the omission of sexual orientation, the Glossary does actually include a definition for the term ‘gender identity’ on page 135:

 

“Refers to a person’s sense of being masculine or feminine, both or neither, and how they identify. Gender identity does not necessarily relate to the sex assigned at birth.”

 

There are some positive elements of this definition, including recognition that gender identity can differ from the sex assigned at birth. However, it could also benefit from including additional detail, such as making explicit reference to ‘non-binary’ gender identities (beyond the acknowledgement of “both or neither” in the current definition) although this should be done in close consultation with trans groups.

 

Recommendation 3: The Glossary definition of ‘gender identity’ should be expanded, including use of the term ‘non-binary’ and linking to the term transgender. These changes should be made in consultation with trans groups.

 

The final term in the Glossary that requires updating is ‘diversity’ on page 133:

 

“Differences that exist within a group including age, sex, gender, gender expression, sexuality, ethnicity, ability, body shape and composition, culture, religion, learning styles, socioeconomic background, values and experience. Appreciating, understanding and respecting diversity impacts on an individual’s sense of self and their relations to others. Diversity can be acknowledged through shared activities that may involve building knowledge and awareness.”

 

It should be noted that this is the only time in the entire document that the phrase ‘gender expression’ is used – and it is not defined, meaning it does not automatically include transgender students. Similarly, the use of the word ‘sexuality’ here is based on the existing definition that, as we have seen above, does not actually include lesbian, gay or bisexual students. Finally, the exclusion of the word intersex – and the failure to define ‘sex’, here or elsewhere – means students with intersex variations are not necessarily included either.

 

In short, the current definition of ‘diversity’ in the Glossary appears to be ironic, given it does not include students who are lesbian, gay, bisexual, transgender or intersex.

 

Recommendation 4: The Glossary definition of diversity should be amended to include references to differences in sexual orientation, gender identity and intersex variations.

 

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Inclusive Information

 

The adoption of the above recommendations would be an important first step towards an inclusive PDHPE K-10 Syllabus. However, they will not have a significant impact unless the content of the Syllabus itself, and specifically the material that must be taught in its respective Stages, is also updated.

 

This means ensuring that the following concepts are introduced, and explained, at appropriate points in the Syllabus:

 

  1. Sexual orientation

 

The concept of sexual orientation, including differences in sexual orientation and the existence of lesbian, gay and bisexual people, should be introduced by stage 3 of the Syllabus (at the latest). Equally importantly, it must not be ‘optional’ to teach the fact that people can be any of heterosexual, lesbian, gay or bisexual, and that each sexual orientation should be accepted.

 

On a practical level, there are several places in the draft Syllabus where this could be achieved, including:

 

  • In Stage 3, on page 66, where it says “examine how identities and behaviours are influenced by people, places and the media, for example: – distinguish different types of relationships and their diversity”, the ‘for example’ should be removed. The words ‘including relationships between people of different sexes, and of the same sex’ should be added after ‘their diversity’.
  • In Stage 3, also on page 66, where it says “investigate resources and strategies to manage change and transition, for example: – understand that individuals experience change associated with puberty at different times, intensity and with different responses eg menstruation, body change emotional change, sexuality”, both the ‘for example’ and ‘eg’ should be removed. The term ‘sexual orientation’ should also be added after sexuality (acknowledging the different between these two concepts, as described above).
  • In Stage 4, on page 78, after it says “investigate the impact of transition and change on identities: – examine the impact of physical, social and emotional change during adolescence on gender, cultural and sexual identity” add a new point ‘- examine and discuss different sexual orientations, including heterosexual, lesbian, gay and bisexual’.
  • In Stage 4, also on page 78, the point “describe how rights and responsibilities contribute to respectful relationships: – recognise types and variety of relationships” should be amended along similar lines to the first dot point above in relation to Stage 3, page 66.
  • In Stage 4, on page 85, where it says “plan and use health practices, behaviours and resources to enhance the health, safety, wellbeing and physical activity participation of their communities: – design and implement health promotion activities targeting preventive health practices relevant to young people and those with diverse backgrounds or circumstances eg diversity of culture, gender or sexuality”, the word ‘eg’ should be removed, and the term ‘sexual orientation’ should replace ‘sexuality’.
  • In Stage 5, on page 92, where it says “evaluate factors that impact on the identities of individuals and groups including Aboriginal and Torres Strait Islander Peoples: – examine how diversity and gender are represented in the media and communities, and investigate the influence these representations have on identities” the term ‘sexual orientation’ should be added after gender (to read ‘diversity, gender and sexual orientation’).

 

  1. Gender identity

 

The concept of gender identity should be introduced earlier than sexual orientation, especially given the recent (welcome) increase in children expressing their own gender identities, rather than identities that are expected of, or even imposed on, them. Ideally, this information would be featured from Stage 1 onwards, and acknowledge the diversity of gender identities that exist.

 

The concept of gender identity could also be added, or expanded upon, at several other points in the Syllabus, including:

 

  • In Stage 2, on page 55, where it says “explore strategies to manage physical, social and emotional change, for example: – discuss physical, social and emotional changes that happen as people get older and how this can impact on how they think and feel about themselves and different situations eg friendships, gender identity, appearance, interests” both ‘for example’ and ‘eg’ should be deleted, so that it is mandatory for all students to learn about gender identity at this point.
  • In Stage 4, on page 85 where it says “plan and use health practices, behaviours and resources to enhance the health, safety, wellbeing and physical activity participation of their communities: – design and implement health promotion activities targeting preventive health practices relevant to young people and those with diverse backgrounds or circumstances eg diversity of culture, gender or sexuality”, in addition to the changes proposed earlier re sexual orientation, the term ‘gender identity’ should be added after ‘gender’.
  • In Stage 5, on page 92, where it says “evaluate factors that impact on the identities of individuals and groups including Aboriginal and Torres Strait Islander Peoples: – examine how diversity and gender are represented in the media and communities, and investigate the influence these representations have on identities”, the term ‘gender identity’ should also be added (so that it reads ‘diversity, gender, gender identity and sexual orientation’).

 

  1. Intersex

 

As with gender identity, the concept of intersex – and the existence of people with intersex variations – should be introduced earlier than sexual orientation. Again, this should ideally be introduced in Stage 1, to allow students to grow up knowing that there aren’t just exclusively ‘male’ and ‘female’ bodies.

 

This recognition of bodily diversity should also be incorporated into the Syllabus in Early Stage 1 on page 35, and Stage 1 on page 45, where it includes references to learning about ‘male and female anatomy’. The discussion of intersex should then be incorporated at similar points to sexual orientation and gender identity throughout the remaining stages of the Syllabus.

 

Doing so would also help to meet one of the goals of the recent Darlington Statement of intersex organisations:

 

“54. We call for the inclusion of accurate and affirmative material on bodily diversity, including intersex variations, in school curricula, including in health and sex education.”[i]

 

  1. Rainbow families

 

The existence of a diversity of families, including children who grow up with same-sex parents, should also be included in the Syllabus. There are already multiple points in the Syllabus where this could be easily added, such as:

 

  • In Stage 1, on page 45, after “describe ways to develop respectful relationships and include others to make them feel they belong, for example: – explore kinship as an important part of Aboriginal and Torres Strait Islander cultures”, the ‘for example’ should be removed and a new point added “- explore the diversity of family types, including families with mixed-sex parents and families with same-sex parents.”
  • In Stage 2, on pages 54-55, where it says “explore how success, challenge and overcoming adversity strengthens identity, for example: – explore contextual factors that influence the development of personal identity eg family, parents/carers…” both the ‘for example’ and ‘eg’ should be removed, and the term ‘rainbow families’ should be added (so that it reads ‘family including rainbow families[ii]’).
  • In Stage 3, on page 66, where it says “examine how identities and behaviours are influenced by people, places and the media, for example: – distinguish different types of relationships and their diversity” this could also include a reference to diversity in family relationships, including mixed-sex and same-sex parents.

 

Finally, as noted earlier there is already one place where the words lesbian, gay, bisexual, transgender and intersex already appear in the curriculum – in Stage 5, on page 97. This point should also be made mandatory rather than optional, by removing the ‘eg’ (so that it reads “analyse how societal norms, stereotypes and expectations influence the way young people think, behave and act in relation to their own and others’ health, safety and wellbeing, including lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) health, people from culturally and linguistically diverse backgrounds (CALD)”.

 

Recommendation 5: The content for the Stages of the Syllabus should be amended to ensure all students learn about sexual orientation, gender identity, intersex and rainbow families.

 

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Acceptance & Anti-Bullying

 

One of the welcome features of the draft PDHPE K-10 Syllabus is the significant focus on combating bullying, and on promoting what is described as ‘upstander behaviour’.

 

This includes introducing content around confronting discrimination from Stage 2 onwards – see page 55 (“predict and reflect on how other students might feel in a range of challenging situations and discuss what they can do to support them eg confronting discrimination) and twice on page 57 (“recognise types of abuse and bullying behaviours and identify safe and supportive upstander behaviour” and “share ideas, feelings and opinions about the influence of peers and significant others in relation to bullying, discrimination, eating habits and nutrition, drug use, online safety and physical activity levels”).

 

However, I believe there is a need to ensure this anti-bullying content explicitly addresses anti-LGBTI bullying, given both its widespread prevalence and devastating impact on thousands of LGBTI young people. There are multiple opportunities to make these changes:

 

  • In Stage 3, on pages 69-70, where it says “plan and practise assertive responses, behaviours and actions that protect and promote health, safety and wellbeing, for example: – practise safe and supportive upstander behaviour and discuss how they can prevent and/or stop bullying and other forms of discrimination and harassment” the ‘for example’ should be removed, and the words ‘including racism, sexism, homophobia, biphobia, transphobia and intersexphobia’ should be added after ‘harassment’.
  • Also in Stage 3, on page 70, where it says “recommend appropriate alternatives and take action to improve health, safety, wellbeing or physical activity issues within the school or wider community, for example: – explore initiatives that challenge stereotypes to support the diversity of individuals and communities eg racism, gender stereotypes, discrimination [and] – model behaviour that reflects sensitivity to the needs, rights and feelings of others and explore ways to create safe and inclusive schools for minority groups eg challenge discrimination, peer support” the ‘for example’ and two instances of ‘eg’ should be removed to ensure this content is mandatory. Further, either ‘anti-LGBTI prejudice’ or ‘homophobia, biphobia, transphobia and intersexphobia’ should be added to ‘racism, gender stereotypes, discrimination’.
  • In Stage 4, on pages 79-80, where it says “discuss the impact of power in relationships and identify and develop skills to challenge the abuse of power: – discuss the influence of family, media and peer attitudes to power and explore how these may lead to an abuse of power in relationships eg bullying, homophobia, intolerance, family and domestic violence [and] – recognise forms of bullying, harassment, abuse, discrimination and violence and how they impact health and wellbeing”. It should be noted that this is the only time ‘homophobia’ is mentioned in the entire document and, unfortunately, it is after an ‘eg’, meaning it is entirely optional for teachers and schools to teach. The ‘eg’ should be deleted, and either ‘homophobia, biphobia, transphobia and intersexphobia’ or ‘anti-LGBTI prejudice’ should be added.
  • In Stage 4, on page 83, where it says “investigate the benefits to individuals and communities of valuing diversity and promoting inclusivity: – explore their own and others’ values and beliefs towards issues of racism, discrimination, sexuality and investigate the impact of contextual factors on young people, particularly those from diverse backgrounds, including Aboriginal and/or Torres Strait Islander Peoples [and] – describe how pro-social behaviour, respecting diversity, challenging racism and discrimination are inclusive ways of supporting and enhancing individual; and community health and wellbeing”. Based on the existing definitions of ‘sexuality’ and ‘diversity’ in the Glossary, these points currently do not include promoting LGBTI inclusivity. Even if those definitions are updated in line with the above recommendations, these points should still be made more explicit, with the first amended to read ‘racism, sexism, anti-LGBTI discrimination’ and the second to read ‘challenging racism, sexism, anti-LGBTI prejudice and discrimination’.
  • In Stage 4, also on page 83, where it says “plan and implement inclusive strategies to promote health and wellbeing and to connect with their communities: – describe the skills, strengths and strategies required to contribute to inclusive communities and implement strategies to challenge racist and prejudicial views of diversity within the community”, it should be amended to read ‘challenge, racist, sexist, anti-LGBTI and prejudicial views’.
  • In Stage 5, on page 93, where it says “investigate how the balance of power influences the nature of relationships and propose actions to build and maintain relationships that are respectful: – discuss discrimination as an abuse of power and evaluate legislation, policies and practices that address discrimination eg past policies affecting Aboriginal Peoples such as segregation and Aboriginal Self Determination” the words ‘, or the Sex Discrimination Act’ could be added.

 

Recommendation 6: The content for the Stages of the Syllabus should explicitly include discussion of anti-LGBTI bullying and discrimination and how to address it, beyond the single – optional – reference to homophobia that currently exists.

 

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Sexual Health Education

 

Another positive feature of the draft PDHPE K-10 Syllabus is the inclusive definition of ‘sexual health’ in the Glossary:

 

“A state of physical, mental and social wellbeing in relation to sexuality. It requires a positive and respectful approach to sexuality and sexual relationships, as well as a possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence.”

 

The explicit acknowledgement of ‘pleasurable and safe sexual experiences’, and the need for sexual experiences to be ‘free of coercion’, is particularly welcome.

 

However, adopting an inclusive definition doesn’t mean much when the only time the phrase sexual health actually appears in the Syllabus prior to Stage 5 (which would generally be students in Years 9 and 10), is one brief reference in Stage 4 (covering students in Years 7 and 8), on page 84:

 

“explore the relationship between various health, safety and physical activity issues affecting young people and assess the impact it has on the health, safety and wellbeing of the community:

  • examine the impact that body image and personal identity have on young people’s mental health, drug use, sexual health and participation in physical activity.”

 

This isn’t explicitly about teaching the fundamentals of sexual health, merely its connection to, and interrelationship with, ‘body image and personal identity’ (which, while important, is not sufficient in and of itself).

 

Similarly, there is only one reference in the general curriculum to ‘sexually transmissible infections’, also in Stage 4, on page 85:

 

“plan and use health practices, behaviours and resources to enhance the health, safety, wellbeing and physical activity participation of their communities:

  • identify and apply preventive health practices and behaviours that assist in protection against disease eg blood borne viruses, sexually transmissible infections”.

 

Note that the reference to BBVs and STIs here also follows an ‘eg’, meaning that the decision whether to teach students about STIs (such as HIV) is discretionary. That is simply not good enough in 2017 – all students should receive information about STIs to empower them to control their own health.

 

Recommendation 7: Stage 4 of the Syllabus should include comprehensive education about sexual health, including mandatory information about sexually transmissible infections.

 

There is more information around sexual health in Stage 5 of the draft Syllabus, although even it is problematic. On page 95, it states:

 

“evaluate strategies and actions that aim to enhance health, safety, wellbeing and physical activity levels and plan to promote these in the school and community:

  • explore methods of contraception and evaluate the extent to which safe sexual health practices allow them to take responsibility for managing their own sexual health”

 

Given ‘contraception’ is generally understood to mean prevention of pregnancy, this content is therefore skewed towards vagina-penis sexual intercourse. To address the fact there are a range of other sexual practices (not just for LGBTI students, but also for cisgender heterosexual students too), this point should be amended to explicitly discuss sexual health and STI-prevention with respect to a range of practices. To not do so means denying the stated aim for all students “to take responsibility for managing their own sexual health.”

 

Recommendation 8: The Syllabus should move beyond discussion of ‘methods of contraception’ to discuss sexual health education around a range of different practices so that all students can ‘take responsibility for managing their own sexual health’.

 

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Life Skills

 

The students who are enrolled in the Years 7-10 Life Skills version of the PDHPE Syllabus can (obviously) also be lesbian, gay, bisexual, transgender or intersex, and therefore also have the right for LGBTI content to be included throughout.

 

There are a variety of points at which the draft Life Skills content should be amended to achieve this important goal, including:

 

  • On page 113, where it says “What personal characteristics make us unique? Students recognise personal characteristics that are the same and/or different as others, for example: – gender [and] – diversity” the terms ‘gender identity’, ‘intersex’ and ‘sexual orientation’ should also be added.
  • Also on page 113, where it says “What changes do adolescents go through? Recognise visible features that undergo change during adolescence, for example: – female and male body changes” it should acknowledge the existence of intersex bodies.
  • On page 114, where it says “recognise changes in relationships that occur in adolescence, for example: – social and emotional relationships with other genders” it should be reworded to say “social and emotional relationships with people of the same or different genders”.
  • Also on page 114, where it says “understand that physical changes are a normal part of adolescence, for example: – identify the stages of the reproductive process, eg menstrual cycle, sperm production, conception, pregnancy, childbirth” it should also include discussion of sexual health, and sexual practices, that are not ‘reproductive’ in nature.
  • On page 115, where it says “recognise factors that impact negatively on relationships, for example: – bullying, coercion, harassment, violence, threats, bribes [and] –sexism [and] –racism” it should also include either ‘anti-LGBTI prejudice’ or ‘homophobia, biphobia, transphobia and intersexphobia’.
  • Finally, on page 122, where it says “identify matters associated with sexuality, for example: privacy and ethical behaviour – responsibilities associated with sexual activity for themselves and others – safe sex – contraception – fertility and pregnancy – sexually transmitted infections – sexual behaviours and expectations – appropriate sources for advice on and assistance – potential outcomes of sexual activity” once again it should explicitly include discussion of sexual health, and sexual practices, that are not ‘reproductive’ in nature.

 

Recommendation 9: The Years 7-10 Life Skills Syllabus should be amended to explicitly include LGBTI students and content that is relevant to their needs.

 

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Thank you for taking this submission into consideration as the NSW Education Standards Authority finalises the PDHPE K-10 Syllabus. Please do not hesitate to contact me at the details below should you wish to clarify any of the information provided, or to seek additional information.

 

Sincerely

Alastair Lawrie

 

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Update 25 January 2019:

The final NSW PDHPE K-10 Syllabus was released in April 2018, and is being progressively rolled out from the start of the 2019 school year. Unfortunately, as this post – Invisibility in the Curriculum – makes clear, despite some minor improvements, the syllabus continues to ignore LGBTI students and content that is relevant to their needs, including sexual health education. This situation is a scandal, but one that seems to be largely ignored.

 

Footnotes:

[i] For more on the Darlington Statement, see the OII Australia website: https://oii.org.au/darlington-statement/

[ii] If the term ‘rainbow families’ is used at this point, it should also be defined in the Glossary.

Malcolm Turnbull, If you want to ‘strengthen’ anti-vilification laws, here’s something you can do

Update 29 April 2017:

In early April, I wrote to Prime Minister Malcolm Turnbull and Attorney-General George Brandis suggesting that, it they genuinely wanted to ‘strengthen’ Australia’s anti-vilification protections, they should introduce laws prohibiting vilification against lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

In that letter, I included statistics from The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse which found that 74% of LGBTIQ Australians experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their lives, with 48% reporting anti-LGBTIQ harassment in the past 12 months alone.

Unfortunately, it appears that the Australian Government isn’t particularly interested in doing anything to address this epidemic of anti-LGBTI abuse – there is no LGBTI equivalent to section 18C of the Racial Discrimination Act 1975, and, based on the response I received this week from the Attorney-General’s Department (see below), the Turnbull Government will not introduce one.

Perhaps the most bizarre part of the Government’s letter is the reference to ‘sexual harassment’ provisions within the Sex Discrimination Act 1984, as offering protections against anti-LGBTI vilification. The definition of sexual harassment under that legislation is as follows:

Section 28A

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed…

(2) In this section:

‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

This definition, and its focus on ‘of a sexual nature’, means that while LGBTI people are protected against ‘sexual harassment’ under the Sex Discrimination Act 1984, only a small fraction of the anti-LGBTI verbal abuse that is experienced by LGBTI Australians would be covered by this provision – the vast majority of harassment and abuse, including nearly all of the comments reported in The State of Homophobia, Biphobia & Transphobia, would remain entirely legal.

Of course, given their ongoing refusal to pass marriage equality without a completely unnecessary, wasteful and divisive plebiscite, and the attacks on and dismantling of the Safe Schools program, it was always unlikely that the Turnbull Government would do anything substantive to tackle anti-LGBTIQ verbal harassment and abuse.

Still, now that they have been presented with the evidence, they can no longer claim that there is no problem with homophobia, biphobia, transphobia and intersexphobia in Australia. They know it exists – they are simply choosing to ignore it.

Here is the full response from the Attorney-General’s Department:

27 April 2017

Dear Mr Lawrie

Thank you for your correspondent of 3 April 2017 to the Prime Minister, the Hon Malcolm Turnbull MP, regarding Commonwealth anti-vilification laws. Your letter was referred to the Attorney-General, Senator the Hon George Brandis QC, as the matter falls within his portfolio. The Attorney-General has asked me to respond on his behalf.

The Australian Government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on these grounds in a range of areas of public life.

The Sex Discrimination Act also prohibits sexual harassment in a number of areas of public life. Under the definition of sexual harassment, the circumstances to be taken into account include, but are not limited to, the sex, sexual orientation, gender identity and intersex status of the person harassed.

Criminal laws in Australia generally prohibit conduct which threatens or results in harm to a person, regardless of the individual attributes of the victim.

The Australian Government considers these protections, in conjunction with other protections under Australian law, are appropriate in addressing the behaviour outlined in your letter.

Thank you for bringing your concerns to the attention of the Australian Government.

Yours sincerely

[Name withheld]

Director, Human Rights

Civil Law Unit

 

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Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Monday 3 April 2017

Dear Prime Minister

Commonwealth Anti-Vilification Laws

I am writing to you about a subject that has preoccupied your Government in recent weeks: Commonwealth anti-vilification laws.

However, I do not wish to re-litigate the debate over your proposed amendments to section 18C of the Racial Discrimination Act 1975, especially now that those changes have been comprehensively rejected by the Senate (happily from my perspective, presumably less so from yours).

Instead, I wish to discuss an area where it appears that, at least based on your public statements, you and I agree.

Specifically, during the course of the debate around 18C, two key principles emerged from media releases and speeches made both by yourself, and by the Attorney-General, Senator the Hon George Brandis.

First, your Government believes that there is a place for legal protections against vilification.

This is apparent not just from the fact that you chose to try to amend section 18C, rather than repeal it (therefore acknowledging the overall legitimacy of anti-vilification laws), but also through your comments at the joint Press Conference on 21 March, announcing the changes:

“We are defending the law by making it clearer. We are defending Australians against racial vilification.”

And from the Attorney-General’s Second Reading Speech:

“I have always believed that there is no inconsistency whatever between effective, appropriately-worded racial vilification laws, and the robust defence of freedom of speech.”

Second, your Government believes that such legal protections against vilification should be ‘strong’.

Indeed, both you and your Attorney-General repeatedly claimed that the Human Rights Legislation Amendment Bill 2017 would strengthen existing vilification protections.

At your joint Press Conference you stated that “[W]e are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification” and that it was time to “defend Australians with effective laws, clear laws, against racial vilification.”

The Attorney-General similarly claimed in his Second Reading Speech that the changes were being proposed “to strengthen its anti-vilification provisions.”

Taking you at your word(s) then, you both believe there is a place for anti-vilification laws, and that such laws should be strong and effective.

I agree with these two principles (even if we disagree on how they should be reflected in the Racial Discrimination Act).

Which is why, now that your changes to section 18C have been defeated, I write to suggest an additional way in which you can protect Australians against vilification: by introducing anti-vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

As you would be aware, there is currently no Commonwealth protection against vilification on the basis of sexual orientation, gender identity or intersex status.

Nor are there LGBTI anti-vilification protections under the laws of Victoria, South Australia, Western Australia or the Northern Territory (meanwhile, the protections that exist under NSW law are overly-narrow, and fail to protect some parts of the community).

This leaves a significant proportion of Australia’s LGBTI communities without any legal protections against homophobic, biphobic, transphobic and intersexphobic vilification.

Unfortunately, such vilification remains all-too-common in Australia.

In a survey that I conducted at the start of 2017, 74% of LGBTIQ respondents reported being subject to anti-LGBTIQ verbal abuse or harassment at some point during their lives[i].

Disturbingly, 48% of respondents reported that at least one instance of such abuse or harassment occurred during the last 12 months.

These figures were even higher for some sections of the LGBTIQ community:

  • 68.2% of trans respondents
  • 65% of Aboriginal and/or Torres Strait Islander LGBTIQ respondents, and
  • 74.5% of LGBTIQ respondents aged 24 or under

reported verbal abuse or harassment in the past 12 months alone.

I hope that you agree these rates of homophobic, biphobic, transphobic and intersexphobic verbal abuse are simply unacceptable.

And if you are unconvinced by the raw numbers, then I suggest that you read the even rawer, and in some cases quite horrific, examples of anti-LGBTIQ harassment shared by the 1,672 people who took part in my survey (attached).

The challenge for you is that this abuse is happening on your watch.

If you genuinely believe there is a place for anti-vilification laws, and that such laws should be strong and effective, then I believe you should respond to this epidemic of anti-LGBTI verbal abuse and harassment with Commonwealth anti-vilification laws covering sexual orientation, gender identity and intersex status, on an equivalent basis to existing racial vilification protections.

After all, if racist vilification is considered so serious as to require legislative intervention, then there is no logical reason why homophobic, biphobic, transphobic and intersexphobic vilification should not be similarly prohibited.

If you do not take action to address this issue, then by implication you are suggesting that you and your Government find anti-LGBTIQ vilification to be less offensive, and arguably more ‘acceptable’, than racial vilification.

In conclusion, I will return to another comment made by you at the joint Press Conference on 21 March:

“Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.”

My question to you is: do you believe that lesbian, gay, bisexual, transgender and intersex Australians also deserve ‘mutual respect’?

If you do, then please take action to protect LGBTI Australians from the homophobic, biphobic, transphobic and intersexphobic vilification that far-too-frequently mars our own participation in the country you currently lead.

Sincerely

Alastair Lawrie

Cc Senator the Hon George Brandis

Attorney-General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Malcolm Turnbull Hands

Whether LGBTI Australians receive anti-vilification protections under Commonwealth law is now in Malcolm Turnbull’s hands.

Footnotes:

[i] For full results, see The State of Homophobia, Biphobia & Transphobia, Survey Results Part 1: Verbal Harassment and Abuse

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 2: Physical Abuse or Violence

This post is the second 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 three questions about experiences of anti-LGBTIQ physical abuse or violence, including publishing their personal stories of homophobic, biphobic, transphobic and intersexphobic violence.

It makes for particularly tough reading – not only are the reported rates of physical abuse, both over their lifetimes and specifically during the last 12 months, far too high, many of the examples of violence that were provided are, frankly, brutal reminders of the unacceptable state of homophobia, biphobia and transphobia in Australia today.

If the topics covered in this post raise any issues for you, contact details of relevant support services are provided at the end of the article.

the-state-of-homophobia-biphobia-transphobia-6

Question 1: Have you ever experienced physical abuse or violence because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this physical abuse or violence occurred in the past 12 months?

Overall, 26% of survey respondents – 431 people out of the 1,647 who answered question 1 – indicated they had experienced physical abuse or violence because of their LGBTIQ status at some point in their life.

128 people – or 30% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ physical abuse or violence had occurred during the last 12 months.

Including those who answered no to question 1, that means approximately 7.8% of all respondents reported experiencing physical abuse or violence in the past year alone.

It should be noted that these rates are significantly lower than the numbers who had previously reported receiving anti-LGBTIQ verbal harassment or abuse. Nevertheless, these findings confirm that homophobic, biphobic, transphobic and intersexphobic physical abuse or violence in Australia is unacceptably high:

  • 1 in 4 LGBTIQ people have been physically assaulted simply because of who they are, and
  • 1 in every 13 LGBTIQ respondents has experienced such abuse or violence in the last 12 months alone.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were some potentially surprising results in reported rates of lifetime anti-LGBTIQ physical abuse or violence. However, the respective answers of different groups to question 2 were more predictable – and more depressing for that reason. The results for both questions were as follows:

Lesbian: 24.1% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[iii]

Gay: 34.4% ever, and of those 23.6% during the past 12 months[iv]

Bisexual: 14.6% ever, of those 44.2% in last 12 months[v]

Transgender: 33.6% ever, of those 47.2% in last 12 months[vi]

Intersex: 46.7% ever, of those 71.4% in last 12 months[vii], and

Queer: 27.1% ever, of those 44% in last 12 months[viii].

The rates for intersex respondents were clearly the highest – on both measures – although the small sample size (n=15) should be remembered at this point. Of the remaining LGBTQ groups, the category reporting the highest lifetime rates of physical abuse or violence were people identifying as gay, followed closely by transgender people.

There are a range of possible explanations for this, including physical bullying of gay students during school, and ‘historical’ incidents of anti-gay violence that may have happened many years ago (and there is some evidence for both factors in the personal stories of violence detailed below)

Sadly, the relatively high rates reported by transgender respondents were largely predictable. Disturbingly, they were higher again where a person indicated they were both transgender and gay – with 45.6% reporting lifetime physical abuse or violence. These numbers are obviously horrific [ix].

It is equally worrying to look at the proportion of each group overall who reported an instance of anti-LGBTIQ physical abuse or violence in the past 12 months:

  • Lesbian: 6.5%
  • Gay: 8.1%
  • Bisexual: 6.5%
  • Transgender: 15.6%
  • Intersex: 33.3%
  • Queer: 12%

On this measure, the proportion of gay respondents reporting physical abuse or violence is much lower, and is in fact similar to both lesbian and bisexual survey respondents.

However, this finding demonstrates the disproportionate impact of recent anti-LGBTIQ physical abuse and violence on transgender (including people who identified as both transgender and gay, where the figure was 24.6%, on 1 in 4 people reporting abuse in the last year alone), intersex and queer members of the community.

Therefore, while there have historically been high rates of homophobic (and specifically anti-gay), transphobic and intersexphobic violence in Australia, there appears to be comparatively far higher rates of transphobic, intersexphobic and anti-queer physical abuse during the last 12 months.

Aboriginal and Torres Strait Islander people

As with verbal harassment and abuse, Aboriginal and/or Torres Strait Islander LGBTIQ people reported higher rates of physical abuse or violence than their non-Indigenous LGBTIQ counterparts.

36.7% of Aboriginal and Torres Strait Islander respondents reported anti-LGBTIQ physical abuse at some point during their lifetime[x], which is higher than both gay and transgender people, discussed above. Of those, 40.9% indicated at least one instance of such violence had occurred in the past 12 months[xi].

Taken together, this means that 15% of Aboriginal and Torres Strait Islander LGBTIQ people reported homophobic, biphobic or transphobic physical abuse or violence during the past year – double the rate of non-Indigenous LGBTIQ Australians (7.5%).

Age

There were some significant differences in terms of experiences of homophobic, biphobic, transphobic or intersexphobic physical abuse or violence depending on the age cohort of the respondent:

24 and under: 18.7% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 47.6% indicated at least one instance during the past 12 months[xii]

25 to 44: 33.1% ever, and of those 27.2% in the last 12 months[xiii]

45 to 64: 39.9% ever, and of those 16.4% in the last 12 months[xiv], and

65 and over: 30.1% ever, and of those 9.1% in the last 12 months[xv].

Thankfully, the proportion of LGBTIQ people aged 24 or under reporting lifetime physical abuse or violence was lower than their counterparts in other age cohorts. Of course, this result should be expected given their lesser ‘life experience’ (ie fewer years in which abuse may have occurred), but that was not the case for verbal harassment or abuse which was reported at similar rates to older groups.

Rates of lifetime homophobic, biphobic and transphobic physical abuse or violence then increased for people aged 25 to 44, and again for people aged 45 to 64, before declining for people aged 65 and over.

One possible explanation for this is the age at which these groups ‘came of age’: people aged 65+ turned 18 before 1970, and lower visibility of LGBTIQ people (and especially some communities within this umbrella term) may have lessened their experiences of direct physical violence (while exacerbating other problems, including social exclusion and mental health issues).

On the other hand, people aged 45 to 64 generally turned 18 in the 1970s and 1980s, and likely bore the brunt of societal backlash to increased visibility of non-cisgender and/or non-heterosexual Australians, including via physical assaults.

It is however worrying that for those people who turned 18 in the supposedly more accepting 1990s and 2000s (who are now aged 25 to 44), the rates of physical abuse or violence remained relatively high – with 1 in 3 survey respondents in this demographic affected.

Turning to anti-LGBTIQ physical abuse in the past 12 months, the results were very different:

  • 8.8% of all respondents aged 24 or under reported abuse in the last year, compared to
  • 7.1% of people aged 25 to 44
  • 6.5% of people aged 45 to 64, and
  • 2.8% of people aged 65 and over.

Once again, we see that current homophobic, biphobic and transphobic physical abuse and violence is disproportionately affecting younger LGBTIQ Australians – who are 35.4% more likely to report such abuse than people aged 45 to 64.

Despite all of the progress that we have made, on so many fronts, the fact that 1 in 12 LGBTIQ people aged under 25 reported physical abuse or violence in the last year alone is a confronting, and in many ways, devastating, statistic.

State or Territory of Residence

The rates of homophobic, biphobic, transphobic or intersexphobic violence did not differ greatly between most states and territories:

NSW: 26% of respondents have ever experienced anti-LGBTIQ physical abuse, and of those 27.3% indicated at least one instance during the past 12 months[xvi]

Victoria: 29.5% ever, and of those 29% in the last 12 months[xvii]

Queensland: 26.4% ever, and of those 21.2% in the last 12 months[xviii]

Western Australia: 28.1% ever, and 45.2% in the last 12 months[xix]

South Australia: 25.2% ever, and of those 29.4% in the last 12 months[xx]

Tasmania: 19.8% ever, and of those 45.4% in the last 12 months[xxi]

ACT: 14.3% ever, and of those 37.5% in the last 12 months[xxii], and

Northern Territory: 23.8% ever, and of those 20% in the last 12 months[xxiii].

Despite the similarity between jurisdictions, there are three things here worth noting:

  • Western Australia had by far the highest overall proportion of LGBTIQ people reporting physical abuse or violence in the last year, at 12.4%[xxiv]
  • The ACT has reported significantly lower levels of physical abuse than the national average (5.4% in the past 12 months), and was also significantly lower in terms of verbal harassment or abuse, and
  • Despite having the second lowest lifetime rates of anti-LGBTIQ physical abuse, Tasmania actually reported the second highest rates in the past 12 months (9%), repeating a similar pattern for verbal abuse.

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic physical abuse or violence [Optional]:

This question allowed respondents to provide an example of the physical abuse or violence they had experienced, irrespective of when it had occurred.

As anticipated, many of the stories that have been shared are both incredibly powerful, and profoundly upsetting.

At this point, I would recommend that you only read further if you are emotionally and mentally prepared to do so. To help you decide whether to continue, please be aware that some stories involve details of physical violence and injury, as well as sexual and child sexual assault.

A lightly-edited[xxv] version of the stories of homophobic, biphobic, transphobic and intersexphobic physical abuse or violence that were shared can be found at the following link:

question 3 physical abuse or violence comments

From my perspective, several consistent themes emerge from these stories, including:

The most common type of story shared involved anti-LGBTIQ abuse in the school environment (at least 38 respondents mentioned school). For example:

“Other kids would throw food at me at school and threaten to kill me. One time a group of bigger boys held me down and drew penises on my face at school. Teachers did nothing. People just laughed. I wanted to die.”

“During the HSC, the day of my last exam. A group of guys waited for me around the corner of the hall. They grabbed me by the neck and dragged me around the corner whilst beating me.”

“I was violently assaulted during high school. A boy at my school also stalked me and threatened to rape me to ‘make me straight.’”

A number of respondents explicitly indicated that the homophobic, biphobic or transphobic abuse occurred some time ago:

“Many years ago at high school. Managed to steer clear of physically violent homophobic behaviour since then.”[xxvi]

“I was bullied relentlessly when I was at school. It was a long time ago (in the 70s) and it included physical abuse. I’m one of the lucky ones, I survived. Many other young LGBTI Australian youth didn’t… and this is still continuing today, validated by politicians and religious ‘leaders’ who have no concern about the harm they are doing by imposing their hetero-normative agendas.”

“I have been punched in the street a few times in the 1990s and once had a bottle broken over my head and was stabbed in the face with the broken bottle (year 2000).”

Several stories involved anti-lesbian violence, including attempts of ‘corrective rape’ and sexual assault:

“I have been bashed in the street for holding my partner’s hand, I have been threatened with rape for dancing with another woman, I have had the police stand in my lounge room making threatening gestures when my partner and I reported a crime, refusing to do anything because ‘some people just don’t like dykes’ and we’d ‘just have to get used to that.’”

“Men grope me, stick their hands down my pants in public places and try to force me to kiss them. When I say I’m a lesbian it’s always either ‘that’s okay I don’t mind’, ‘I can change that’, ‘you’ve just never had a good fuck’.”

“When I lived in Queensland (not where I currently reside) I had strangers at parties come up to my girlfriend and I and forcibly try to dance with us and grope us and insist that we should have sex with them/have a threesome because we need ‘some real fucking’.”

Another common theme was anti-trans violence, such as the ‘policing’ of gender appearance or behaviour, and again including sexual assault:

“Was physically abused by a middle-aged woman who was confused by my gender presentation and took it upon herself to check + feel my chest for the presence of breast tissue (which was underneath my binder).”

“I’ve been sexually assaulted by partners because of my gender non-conforming behaviour, to try and ‘correct’ me into being femme.”

“When I wasn’t out about being a trans man, this bi girl that also knew I was bi thought it was ok and appropriate to sexually assault me and grab my vagina.”

“I was sexually assaulted when a group of young men found out I was transgender.”

A disturbing proportion of stories involved physical abuse and violence from parents, family members and partners in intimate relationships:

“My dad tried to beat the gay out of me a lot growing up.”

“As a child I was beaten at different times by both parents, one publicly, and being told to man up.”

“My mum hit/tried to strangle me when I came out to her as trans.”

“A boyfriend at the time – I told him I’m queer (pan, if you like) and he started grabbing me without my consent sexually in public.”

At least a dozen stories referred to homophobic, biphobic and transphobic violence in spaces and places that the LGBTIQ community call ‘home’:

“I got king-hit/coward-punched whilst walking down Oxford Street in Sydney during Mardi Gras.”

“I have been poofter bashed – just off Oxford St – and was once assaulted by police officers (which I took action about).”

“When I lived in Sydney in the mid-1990s I was bashed by a group of ‘skin-heads’ on Darlinghurst Rd as I walked home after work.”

“Physically assaulted and knocked unconscious by men loitering at a McDonalds on a popular gay night strip in Melbourne.”

“Several years ago I was assaulted in Malvern Rd Prahran by 5 guys yelling death to fags – luckily for me as the group kicked me as I lay helpless a driver stopped and they got scared off.”

And then there were some stories that defied easy ‘categorisation’, but which were so powerful that I felt compelled to reproduce here:

“I’ve been verbally abused, threatened by men, chased by youths with knives and survived an attempted rape and murder by a straight man who saw me come out of a gay pub.”

“Attacked during lgbt rally, egged until I got welts, physically attacked, had people bang on the windows of my room + house and yell they’d kill me etc.”

“Glass bottles thrown at my head and at my lesbian friends because we needed to “get back to the Valley with the freaks” and “needed them to show us dick” so we would stop being into women; guy holding up my girlfriend by her throat because we kissed in a pub; sexual assaults to me (several) partly because they knew I was bisexual so I was “automatically up for sex”. I wasn’t. There was no consent. I even said no and they said I was lying because I am bi.”

“I, my partner and her elderly father were all bashed by a bunch of teenage boys who chased us from the train station to our home kicking us, hitting us, spitting at us, throwing things at us and verbally abusing us. They then attacked my father-in-law when he attempted to come to our aid. He was in his mid-60s at the time of the attack.”

Some shorter comments were nevertheless shocking:

“Being beaten by 3 older men who had followed me home after I left my boyfriend on public transport. I was 16.”

“My partner and I were assaulted whilst kissing to say good bye.”

“My partner and I had glass beer bottles thrown at us walking down the street while holding hands.”

“I was last assaulted for my sexuality in early 2013, and dozens of times before that.”

Finally, and disturbingly, there were at least three stories in which the person who experienced anti-LGBTIQ physical abuse tried to downplay the extent of the violence:

“Bashed (not badly) numerous times by strangers, usually with onlookers. Extreme harassment and threats from police on several occasions.”

“Mild beatings by groups of boys in late high school.”

“Just being punched in the face.”

Describing homophobic, biphobic and transphobic violence in this way is likely part of a psychological coping strategy for these respondents – but, from this author’s perspective, there is no circumstance in which the word ‘just’ ought to appear in front of the phrase being punched in the face.

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Conclusion

The results of this survey suggest that 1 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic physical abuse or violence at some point in their lives.

30% of that group – or 1 in 13 out of all survey respondents – reported anti-LGBTIQ physical violence in the past 12 months alone, confirming once again that 2016 was an awful year for lesbian, gay, bisexual, transgender, intersex and queer Australians.

These proportions were even higher for some sections within the community. While the overall rate was 7.8% reporting abuse in the last year, the equivalent figure was:

  • 15.6% of transgender people
  • 33% of intersex people
  • 12% of queer people
  • 15% of Aboriginal and/or Torres Strait Islander LGBTIQ people.

LGBTIQ respondents age 24 and under were also 35.4% more likely to report recent homophobic, biphobic, transphobic or intersexphobic physical abuse than people aged 45 to 64.

Some of our political leaders like to espouse the idea that Australia is an inclusive and tolerant country, welcoming of differences in sexual orientation, gender identity and intersex status. That may be the case for some people – but these figures reveal a different, harsher, reality for many LGBTIQ Australians.

And, if anyone doubts the impact of homophobic, biphobic, transphobic and intersexphobic physical abuse and violence in this nation, I encourage them to read the personal stories from survey respondents, detailed above. If they do, they will come away with a better understanding of what life is like for far too many people.

As noted at the beginning of this post, this has been the second in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia & Transphobia’ Survey.

The next four will be published over the remainder of March and April, with part 3 – which focuses on the places where prejudice occurs – to be published in a couple of weeks.

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 first was published two weeks ago: The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

[ii] Only people who answered yes to question 1 were provided with an opportunity to answer question 2, with 430 people completing the second question and 302 (70%) indicating they had not experienced physical abuse or violence because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 78 yes/246 no. Question 2: 21 yes/56 no.

[iv] Question 1: 220 yes/419 no. Question 2: 52 yes/168 no.

[v] Question 1: 76 yes/445 no. Question 2: 34 yes/43 no.

[vi] Question 1: 125 yes/247 no. Question 2: 58 yes/65 no.

[vii] Question 1: 7 yes/8 no. Question 2: 5 yes/2 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 133 yes/358 no. Question 2: 59 yes/75 no.

[ix] Other figures for people who identified as both transgender and another category:

-Transgender and lesbian: 30.2% lifetime abuse, including 14% of all trans and lesbian respondents experiencing such abuse in the last 12 months alone

-Transgender and bisexual: 26.6% lifetime abuse, 15.3% in the last 12 months, and

-Transgender and queer: 33.5% lifetime abuse, 18.1% in the last 12 months.

[x] Question 1: 22 yes/38 no.

[xi] Question 2: 9 yes/13 no.

[xii] Question 1: 165 yes/719 no. Question 2: 78 yes/86 no.

[xiii] Question 1: 144 yes/291 no. Question 2: 31 yes/114 no.

[xiv] Question 1: 110 yes/166 no. Question 2: 18 yes/91 no.

[xv] Question 1: 11 yes/25 no. Question 2: 1 yes/10 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvi] Question 1: 140 yes/399 no. Question 2: 38 yes/101 no.

[xvii] Question 1: 113 yes/270 no. Question 2: 33 yes/81 no.

[xviii] Question 1: 66 yes/184 no. Question 2: 14 yes/52 no.

[xix] Question 1: 43 yes/90 no. Question 2: 19 yes/23 no.

[xx] Question 1: 34 yes/101 no. Question 2: 10 yes/24 no.

[xxi] Question 1: 22 yes/89 no. Question 2: 10 yes/12 no.

[xxii] Question 1: 8 yes/48 no. Question 2: 3 yes/5 no.

[xxiii] Question 1: 5 yes/16 no. Question 2: 1 yes/4 no. Note that, given the low number of respondents, the proportions re the Northern Territory must be treated with caution. For this reason, the NT is also omitted from some of the discussion/analysis throughout the article.

[xxiv] Full results: NSW 7.1%, Victoria 8.6%, Queensland 5.6%, WA 12.4%, SA 7.4%, Tasmania 9%, ACT 5.4%, NT 4.8%.

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

-Removing identifying information, and

-Removing offensive (for example, racist) remarks.

I have also chosen to exclude a couple of stories where the connection between the physical abuse or violence experienced and anti-LGBTIQ motivation was not clear, and one longer story which could not be edited to retain key points without also potentially disclosing the identity of the person concerned.

[xxvi] It seems one of the lessons many learned at school was to hide or minimise visible displays of same-sex behaviour, to avoid future abuse or violence.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse

With unrelenting attacks on the safe schools program, divisive debate about the proposed marriage equality plebiscite, the horrific mass murder at Pulse nightclub in Orlando and the tragic suicide of Indigenous gay youth Tyrone Unsworth, the past 12 months have undeniably been tough on members of Australia’s lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities.

Now we have empirical evidence to prove that last year was indeed an annus homophobicus.[i]

At the start of this year I conducted a survey of LGBTIQ Australians asking about their experiences of homophobia, biphobia, transphobia and intersexphobia in 2016, covering a range of topics including verbal harassment, physical violence, the places where prejudice occurs, and discrimination in education, employment and other areas.

Excluding responses from non-LGBTIQ people, and from LGBTIQ people outside Australia, a total of 1,672 people completed the survey in the four weeks between 26 December 2016 and 21 January 2017.

This post is the first in a series of six reporting the results of this survey, with a particular focus on three questions about the verbal harassment and abuse experienced by LGBTIQ Australians.

For many people, a number of the results will be unsurprising and yet still shocking – although, even for hardened campaigners such as myself, there are a few findings that are both depressing and disturbing, especially the varying impact of verbal harassment on different sections of the LGBTIQ community.

The State of Homophobia, Biphobia & Transphobia (4)

Question 1: Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

&

Question 2: Has one or more instances of this verbal harassment or abuse occurred in the past 12 months?

Overall, 74% of survey respondents – 1,226 people out of the 1,655 people who answered question 1 – indicated they had experienced verbal harassment or abuse because of their LGBTIQ status at some point in their life.

799 people – or 65% of respondents who answered yes to question 1[ii] – then answered question 2 by stating that at least one instance of this anti-LGBTIQ verbal harassment or abuse had occurred during the last 12 months.

Even including those who answered no to question 1, that still means 48% of all respondents reported experiencing verbal harassment or abuse in the past year alone.

These numbers might not be surprising to members of our community, but it is nevertheless shocking to confirm that 3 out of every 4 LGBTIQ Australians have been verbally harassed because of who they are, with almost half of all respondents reporting homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last 12 months.

The following sections show the results to these two questions according to different demographic groupings, including LGBTIQ status, Aboriginal and Torres Strait Islander people, age, and residence by state and territory.

LGBTIQ Status

There were similarities, as well as some stark differences, in how lesbian, gay, bisexual, transgender, intersex and queer people experienced verbal harassment and abuse. Their respective answers to questions 1 and 2 are as follows:

Lesbian: 77.6% have ever experienced anti-LGBTIQ verbal harassment, and of those 68.7% indicated at least one instance during the past 12 months[iii]

Gay: 78% ever, and of those 56.5% during the past 12 months[iv]

Bisexual: 63.9% ever, of those 68.8% in last 12 months[v]

Transgender: 81% ever, of those 84.4% in last 12 months[vi]

Intersex: 88.2% ever, of those 93.3% in last 12 months[vii], and

Queer: 79.8% ever, of those 79.9% in last 12 months[viii].

Among lesbian, gay, transgender and queer respondents, the proportion that had experienced verbal harassment or abuse at some point in their lives was remarkably consistent – all falling somewhere between 77.6% and 81%. The proportion of bisexual people reporting lifetime abuse was somewhat lower, at 63.9%[ix].

However, there were much larger differences between groups in terms of experiences of anti-LGBTIQ verbal harassment and abuse over the past year.

While 43.4% of all gay respondents, and 44% of all bisexual respondents, reported verbal harassment or abuse during the last 12 months[x], this figure rose to 53.1% of all lesbian respondents (slightly above the overall average).

In terms of queer respondents the figure was higher still, at 63.9%, while for transgender people it rose again to 68.2%.

Think about that for a second: more than two-thirds of transgender people reported being verbally harassed or abused simply because of who they are in the past 12 months alone.

Further, while there is little difference between gay and transgender people in reporting lifetime verbal harassment (78% and 81% respectively), transgender people were 57% more likely to report verbal abuse over the past year.

Of course, all of these figures are far too high; no level of homophobia, biphobia or transphobia is acceptable. Nevertheless, we must not ignore the fact that, when it comes to verbal harassment and abuse over the last year, the burden has fallen much more heavily on transgender and queer Australians.

Aboriginal and Torres Strait Islander people

A total of 62 survey respondents indicated that they were Aboriginal and/or Torres Strait Islander (or 3.7% of the sample).

83.3% reported that they had ever reported verbal harassment or abuse because of their sexual orientation, gender identity or intersex status[xi]. Of those, 78% reported verbal harassment or abuse during the past 12 months[xii].

That means 65% of all Aboriginal and Torres Strait Islander LGBTIQ respondents reported homophobic, biphobic, transphobic or intersexphobic abuse during the last 12 months, significantly above the national average and placing them at similar risk to transgender and queer Australians.

Age

The survey asked respondents to nominate their respective cohort: 24 and under; 25 to 44; 45 to 64; or 65 and over. The answers provided by these different groups were relatively similar for question 1, although varied greatly for question 2.

Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?

  • 24 and under: 70.6% yes[xiii]
  • 25 to 44: 78.2% yes[xiv]
  • 45 to 64: 79.5% yes[xv], and
  • 65 and over: 69.4% yes.[xvi]

Prima facie, the fact the figures for people aged under 25 are slightly lower than the two generations that preceded them might seem encouraging.

However, looked at in a different way, they are a cause for serious alarm: in 2017, a young LGBTIQ person is almost as likely to have experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their comparatively shorter life as someone with 20 or even 40 more years life experience.

This concern is borne out by the answers to the second question:

Has one of more instances of this verbal harassment or abuse occurred in the past 12 months?

  • 24 and under: 74.5% yes[xvii]
  • 25 to 44: 58.9% yes[xviii]
  • 45 to 64: 46.1% yes[xix], and
  • 65 and over: 33.3% yes[xx].

The net effect of these two questions reveals that 54.6% of all respondents aged 24 or under have been verbally harassed or abused because of who they are in the last year, compared to 46.1% of respondents aged 25 to 44 and 36.3% of respondents aged 45 to 64.

To put it another way: young LGBTIQ Australians were 50% more likely to be subject to homophobic, biphobic, transphobic or intersexphobic verbal harassment and abuse in 2016 than LGBTIQ people aged 45 to 64.

This result simultaneously proves and undermines the ‘It Gets Better’ message – yes, it gets better for individuals as they grow older, but, on the basis of these findings, it does not seem it has gotten significantly better for young LGBTIQ people today.

Personally, I believe this result at least partially reflects the fallout of attacks on the safe schools program by religious fundamentalists and right-wing extremists, with a potentially devastating impact on young LGBTIQ people, many of whom are only beginning their journey toward self-understanding and self-acceptance, and consequently may be lacking the same resilience as their older counterparts.

State or Territory of Residence

In contrast to the significant differences in results based on age, the levels of anti-LGBTIQ verbal harassment and abuse reported in different jurisdictions around Australia were remarkably consistent. The respective answers to question 1 and 2 are as follows:

New South Wales: 74% have ever experienced anti-LGBTIQ verbal harassment, and of those 64.8% indicated at least one instance during the past 12 months[xxi]

Victoria: 74.1% ever, and of those 67.3% during the past 12 months[xxii]

Queensland: 76.2% ever, of those 63% in last 12 months[xxiii]

Western Australia: 76.3% ever, of those 65.5% in last 12 months[xxiv]

South Australia: 71.1% ever, of those 66% in last 12 months[xxv]

Tasmania: 70.3% ever, of those 77.9% in last 12 months[xxvi]

Australian Capital Territory: 73.2% ever, of those 51.2% in last 12 months[xxvii], and

Northern Territory: 76.2% ever, of those 56.3% in last 12 months[xxviii].

Including those who answered no to question 1, this means for most states and territories the proportion of LGBTIQ people reporting verbal harassment or abuse in the last 12 months was between 42.9% (NT) and 50% (WA)[xxix].

The jurisdiction with the lowest incidence of homophobic, biphobic, transphobic or intersexphobic verbal abuse in the last year was the ACT at 37.5%; the highest was Tasmania at 54.1% of all respondents.

Of course, while the rates of anti-LGBTIQ verbal harassment may be similar across Australia, the options available to victims of such abuse vary considerably.

Only four jurisdictions offer any legal protections against vilification to the LGBTI community (NSW, Queensland, Tasmania and the ACT[xxx]). With no equivalent to section 18C of the Racial Discrimination Act 1975 contained in the Sex Discrimination Act 1984, LGBTI people in Victoria, Western Australia, South Australia and the Northern Territory are not protected against vilification at any level[xxxi].

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Question 3: If you feel comfortable, please provide an example of this homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse [Optional]

This question allowed respondents to provide an example of the verbal harassment or abuse they had received, irrespective of when it had occurred.

A large number of LGBTIQ respondents took up this opportunity, and the results are sobering, and frequently heart-breaking, to read. A lightly-edited[xxxii] version of these comments can be found at the following link:

question-3-verbal-harassment-and-abuse-comments [PDF]

I encourage you to take the time to read the survey respondent’s very personal stories of homophobic, biphobic, transphobic and intersexphobic abuse, of them experiencing verbal harassment simply because of who they are.

Ideally, conservative and/or right-wing politicians, many of whom claim that anti-LGBTIQ prejudice either doesn’t exist, or is no longer a serious problem, would read them too. If they did, they would have their ‘relaxed and comfortable’ ideas shattered by the irrefutable evidence provided via these real-life stories.

From my perspective, some of the derogatory comments related to sexual orientation that stood out include:

“I was just coming out of a convenience store and walked past this man who was staring at me. Then suddenly he started screaming “Faggot, faggot!!” at me. No one around me said or did anything. I just tried to not react and get away as soon as I could.”

“I normally get something once a year. Walking down the street in Brisbane, my (now) husband and I were shouted at by a couple of blokes who started by saying: ‘you have got to be fucking kidding’ in reference to the fact we were holding hands.”

“I recently saw two young gay men, a couple, who were walking up Chapel Street holding hands. A group of 3 older men were harassing them, following them. I joined the 2 gay men and told them to cross the road and ignore the others. I was then also subjected to the same vitriol with comments such as ‘there’s another one’ and ‘look at the 3 poofters’. We walked into a crowded shop and they didn’t follow us. I was extremely upset by this as were the 2 other younger fellows.”

“I was in my Drs surgery last year & I was abused, & my children were abused, by another patient. My Dr had to drag him away. Some of the names I was called were pervert, deviant, faggot. My kids were called queer, sexually perverted and confused.”

“A co-worker was informed that I identify as bisexual. She berated me openly, saying that I was merely attention seeking and that my children would be very confused adults with such poor guidance in life. She then contacted my husband through social media and told him to take my children and leave because raising them with a mentally ill person was dangerous.”

Transphobic harassment, and verbal abuse on the basis of gender identity, was also disturbingly widespread:

“Public name calling outside a local pub, shouting to others that I don’t have a penis… Being deadnamed in public despite being asked not to, in dismissal of transition or gender status… All in the last 3 months.”

“I was harassed outside a disabled toilet, which I went to because I was uncomfortable in gendered toilets. I overheard someone talking about a ‘faggot’ and learned they were talking about me. I was called transsexual repeatedly against my will by someone. Constant misgendering, deadnaming and disrespect on a daily basis just for being me…”

“Without going into detail, 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 amount 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.”

“Demeaning laughter. Hostile stares. Derogatory language (eg ‘faggot’, ‘it’), usually just spoken audibly to others in front of me occasionally yelled from cars. Deliberate misgendering. I’ve noticed increased hostility from authority figures (eg ticket inspectors) in response to me looking more identifiably trans also. When I was closeted, I used to find people making transphobic jokes in front of me a common and painful experience.”

“Because of my choice of clothing/hairstyle I get called shemale. Heshe. Thing. It. Freak. Pervert. Dyke. Faggot. And that’s just the shortlist, and the most common insults I deal with, especially when I go clothes shopping or use a public restroom.”

This story was worrying, both because of the source of the discriminatory comments, but also because of the lack of action by authorities:

“I’m a pre-service teacher (still in university completing a bachelor). While on one of my teaching placements I received verbal harassment intermittently from the year 6 classes. When I reported this I was underwhelmed by the response from the faculty, both at my teaching school and the university faculty. The underlying cause of transphobic slurs directed towards me was undermined by only addressing ‘disrespect’ and they refused to address anything extending from that. When I expressed my concern in not addressing homophobia and transphobia directly I was met with hostility from the faculty, which made my teaching the remaining 3 weeks very uncomfortable.”

The most common story shared in response to this question concerned homophobic, biphobic or transphobic abuse from people in passing cars: at least 78 different comments cited this type of harassment.

This is both an extraordinary total, and an extraordinary indictment of the kind of person who would engage in the behaviour of shouting anti-LGBTIQ abuse at strangers from the safety, comfort and anonymity of their vehicles.

A typical story related to this type of harassment: “Minding my own business at a train station waiting to be picked up and a car full of guys and girls were yelling out ‘faggot’ to me just because they didn’t like the look of me.”

Although perhaps my favourite comment (for reasons that will soon become obvious) was this: “I was on a date walking with the guy and a guy started yelling at us from his car while he was driving, he lost control of the car and crashed into a sign.” #karma

Another common story was homophobic, biphobic or transphobic harassment on public transport, including trains, buses, trams and even taxis: at least 34 comments reported this kind of abuse. This included:

“Frequent dirty looks in public. Once on a bus (my partner and I were holding hands and talking) a woman stood up from her seat [and] said loudly that ‘we didn’t need to rub our sexuality in everyone’s face’ and moved to a seat further away from us.”

“On a packed train going home and one man took offense to another man’s skin was touching him (we were crammed in together… everyone was touching everyone). He started screaming about how the next person doing ‘any more gay shit’ to him was going to cop it. And screamed at the poor man who tried to defend himself. Anyone who tried to get him to calm down was met with homophobic language and threats. It was very scary.”

“(I’m a trans man, my husband is a cis man – we married and had a daughter before I transitioned). Just last week my husband and I were boarding a bus to the local shopping centre with our 4 year old daughter in tow. The myki machine was taking a bit of time to read each card. A man behind us shouted ‘move it, faggots!’ at us several times. Our daughter became visibly upset. No one stepped in to help or say anything. The man spent the entire bus ride glaring at us and making snide comments to the person in front of him.”

Perhaps most disappointing about the comments in response to question 3 was the fact approximately 20 people described homophobia, biphobia or transphobia from other members of the LGBTIQ community. This was particularly aimed at bisexual people, and to a slightly lesser degree transgender people[xxxiii]. For example:

“Told I’m greedy for being bi, that bisexuality is an excuse to hide that I’m ‘actually gay’, told that I’m a disgrace to the LGBT+ community for ‘not being able to decide’/’pick a side’…”

“Mostly it’s been lesbians telling me that bisexuals are just straight people trying to be trendy and undermining my identity…”

“There have been quite a few instances over the years where people have learned my sexuality and gone on a rant on how disgusting it is, and in some instances behaved threateningly while doing so. This comes from both non-LGBT+ and LGBT+ people.”

“Spat on in a gay bar for being transgender. Called a freak and told to kill myself. Been told I’m not a real man.”

If we are going to campaign for the elimination of homophobia, biphobia, transphobia and intersexphobia from society, then it is incumbent upon us to do better on these issues within our own communities, too.

One small positive from the responses to question 3: the old stereotype of gay man (or trans person) as ‘paedophile’ appears to be fading away, with only eight comments including this description as an element of the verbal harassment or abuse received. That particular form of abuse cannot die soon enough.

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Conclusion

The results of this survey suggest that 3 out of every 4 LGBTIQ Australians have experienced homophobic, biphobic, transphobic or intersexphobic verbal harassment or abuse at some point in their lives.

The survey also confirms that 2016 was a bad year for the LGBTIQ community, with 48% of people reporting that at least one instance of this anti-LGBTIQ verbal abuse occurred in the past 12 months.

These figures are unacceptably high to begin with, but we must also not overlook the fact these proportions are higher still for several groups within the LGBTIQ community who are particularly vulnerable:

  • Transgender individuals were 57% more likely to report verbal harassment and abuse in the past 12 months than gay people
  • Queer individuals were 47% more likely than gay people to experience recent verbal abuse
  • Almost two-thirds of Aboriginal and Torres Strait Islander respondents were subject to homophobic, biphobic or transphobic verbal harassment throughout the course of the past year, and
  • LGBTIQ people aged 24 or under were 50% more likely to have experienced recent verbal abuse than their counterparts aged 45 to 64.

These statistics show that the state of homophobia, biphobia and transphobia in Australia, in 2017, features far more anti-LGBTIQ verbal harassment than any of us would like. The stories shared in response to question 3, detailing personal accounts of this abuse, powerfully reinforces this fact.

As noted at the beginning of this post, this has been the first in a series of six articles reporting the results of my ‘The State of Homophobia, Biphobia and Transphobia’ survey.

The next five, which focus on physical abuse or violence, the places where prejudice occurs, and discrimination in education, employment and other areas, will be published during March and April.

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)

Footnotes:

[i] See 2016: Annus Homophobicus.

[ii] Only people who answered yes to question 1 were provided with the opportunity to answer question 2, with 1,220 people completing the second question and 421 people (or 35%) indicting they had not experienced verbal harassment or abuse because of their sexual orientation, gender identity or intersex status in the past 12 months.

[iii] Question 1: 253 yes/73 no. Question 2: 173 yes/79 no.

[iv] Question 1: 501 yes/141 no. Question 2: 280 yes/216 no.

[v] Question 1: 333 yes/188 no. Question 2: 229 yes/104 no.

[vi] Question 1: 303 yes/71 no. Question 2: 255 yes/47 no. For those respondents who identified as both trans and bisexual, this figure was even higher – 86.3% reporting lifetime abuse. Queer trans respondents also reported higher rates (86.2% lifetime abuse).

[vii] Question 1: 15 yes/2 no. Question 2: 14 yes/1 no. Note that, given the low number of respondents, the proportions re intersex status must be treated with caution. For this reason, intersex status is also omitted from some of the discussion/analysis throughout the article.

[viii] Question 1: 394 yes/100 no. Question 2: 314 yes/79 no.

[ix] Without additional information, it is difficult to reach any firm conclusions about why this is the case, although one factor may be historically lesser visibility of bisexuality (which may reduce verbal harassment and abuse, but also exacerbates exclusion and isolation).

[x] Noting that this calculation includes the numbers of respondents who answered no to question 1.

[xi] Question 1: 50 yes/10 no.

[xii] Question 2: 39 yes/11 no.

[xiii] 627 yes/261 no.

[xiv] 341 yes/95 no.

[xv] 221 yes/57 no.

[xvi] 25 yes/11 no. Note that, given the low number of respondents, the proportions re people aged 65 and over must be treated with caution. For this reason, this group is also omitted from some of the discussion/analysis throughout the article.

[xvii] 485 yes/141 no.

[xviii] 201 yes/140 no.

[xix] 101 yes/118 no.

[xx] 8 yes/16 no.

[xxi] Question 1: 401 yes/141 no. Question 2: 259 yes/141 no.

[xxii] Question 1: 286 yes/100 no. Question 2: 191 yes/93 no.

[xxiii] Question 1: 192 yes/60 no. Question 2: 121 yes/71 no.

[xxiv] Question 1: 116 yes/36 no. Question 2: 76 yes/40 no.

[xxv] Question 1: 96 yes/39 no. Question 2: 62 yes/32 no.

[xxvi] Question 1: 78 yes, 33 no. Question 2: 60 yes/17 no.

[xxvii] Question 1: 41 yes/15 no. Question 2: 21 yes/20 no.

[xxviii] Question 1: 16 yes/5 no. Question 2: 9 yes/7 no. Note that, given the low number of respondents, the proportions re people in the Northern Territory must be treated with caution.

[xxix] Full results (reporting verbal harassment of abuse in the past 12 months, all respondents):

  • NSW 47.8%
  • Victoria 49.5%
  • Queensland 48%
  • WA 50%
  • SA 45.9%
  • Tasmania 54.1%
  • ACT 37.5%
  • NT 42.9%

[xxx] Although NSW does not include vilification protections for bisexual or intersex people, and Queensland does not protect intersex people.

[xxxi] Obviously, depending on the circumstances of the verbal harassment or abuse, only some of the responses given to the survey would fit the legal definition of vilification, irrespective of the ground on which it was based.

[xxxii] Comments were edited to, amongst other things:

-Remove identifying information

-Remove defamatory comments, and

-Remove offensive remarks (for example, deleting explicitly racist comments and/or unnecessary descriptions of a person’s race).

[xxxiii] Although I was particularly disturbed by a small number of respondents who included transphobic comments in their answers to question 3 itself, which were subsequently edited to remove the most offensive elements.

What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice.

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Protected Attributes

 Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex variations of sex characteristics (eb) [noting that Intersex Human Rights Australia’s position is that this last attribute should simply be ‘sex characteristics’ rather than intersex variations of sex characteristics, in line with the Yogyakarta Principles plus 10].

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

gender identity means the gender-related identity, appearance or mannerisms of other gender-related characteristics of an individual including gender expression (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and may include being transgender or transsexual”

gender expression means any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behavioural patterns, names and personal references that manifest or express gender or gender identity”

sex characteristics means a person’s physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sex characteristics”.

Overall, the Tasmanian Anti-Discrimination Act 1998 adopts close to best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

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Religious Exceptions

The Anti-Discrimination Act 1998 is best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

There are three provisions outlining relevant religious exceptions in the Act:

Section 51 “Employment based on religion

(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 observance or practice of a particular religion 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, principles or practices.”

Section 51A “Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

Section 52. “Participation in religious observance

A person may discriminate against another person on the ground of religious belief or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(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.”

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex variations of sex characteristics.

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers). It is therefore pleasing that the ACT Government embraced the Tasmanian approach in its recent reforms to protect LGBT students and teachers at religious schools – although it retains exceptions for health and other community services at this stage.

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Anti-Vilification Coverage

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong. There are actually two provisions that prohibit vilification under the Act:

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group; or

(e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.”

The effect of these two provisions mean that LGBTI Tasmanians are protected both against conduct that offends, humiliates, insults or ridicules, as well as conduct that incites hatred, serious contempt or serious ridicule. This means Tasmania’s LGBTI anti-vilification provisions are the equal best in the country, alongside the ACT.

[Although it should be noted that, in its previous term, the Tasmanian Liberal Government attempted to undermine these anti-vilification protections. It sought to introduce amendments that would have permitted vilification for public acts done in good faith for ‘religious purposes’ (where “religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief”). This would have inevitably resulted in increased vilification of lesbian, gay, bisexual and transgender Tasmanians. Thankfully, while the Bill was passed by the Liberal-majority Legislative Assembly, it was rejected by the Independent-majority Legislative Council in August 2017.]

will-hodgman

Former Tasmanian Premier Will Hodgman sought to undermine LGBTI anti-vilification protections.

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Overall, it is clear that Tasmania’s Anti-Discrimination Act 1998 is the best LGBTI anti-discrimination law in Australia. It has set the standard to which all other jurisdictions should aspire.

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

What’s Wrong With South Australia’s Equal Opportunity Act 1984?

This post is part of a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination. The other posts in the series can be found here.

In particular, they assess Commonwealth, State and Territory legislation in terms of the following three issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

Unfortunately, while South Australia has expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its failure to establish LGBTI vilification offences.

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Protected Attributes

Section 29 of the Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex South Australians from discrimination.

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

  • “if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other’s past sex;
  • if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity… and
  • if the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify.”

Importantly, unlike some jurisdictions, South Australia protects all trans people against discrimination (and not just people with binary gender identities).

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

The Relationships Register Act 2016 has expanded this coverage even further by introducing a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

With this change, South Australia has become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination. Although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by a protected attribute of ‘sex characteristics’.

Summary: The South Australian Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex people against discrimination – with the 2017 inclusion of ‘intersex status’ making it only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

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Religious Exceptions

Unfortunately, while the Equal Opportunity Act 1984 will soon be close to best practice on protected attributes, in terms of religious exceptions it is anything but.

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBTI South Australians:

Religious bodies

(1) This Part does not render unlawful discrimination in relation to-

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

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

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) 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.”

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

It is also unclear whether this general exception allows religious schools to discriminate against LGBTI students. That is because there is a separate section which provides exceptions for religious schools regarding students (section 37), and it does not allow discrimination on the basis of sexual orientation, gender identity or intersex status.

However, unlike the Queensland Anti-Discrimination Act 1991 which protects LGBT students, there is nothing in the general religious exception in section 50 of South Australia’s Equal Opportunity Act 1984 which states that it does not apply to religious schools.

This means that it is still possible the general religious exception in section 50 allows discrimination despite what section 37 says – a risk even the SA Equal Opportunity Commission expressed concern about in their submission to the South Australian Law Reform Institute’s review of Exceptions under the Equal Opportunity Act 1984 (p73). Indeed, the Law Reform Institute recommended:

“that section 50(1)(c) should be removed to make it clear that it does not apply to discrimination with respect to potential or current students of religious educational institutions” (pp83-84).

The situation is also complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

“(3) This Division does not apply to discrimination on the ground of sexual orientation,  gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

However, there are three important qualifications to this ‘benign’ assessment:

  • It still allows discrimination against teachers and other employees in religious schools. This discrimination – which has no connection whatsoever to the ability of LGBTI teachers and other staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate,
  • It is (I believe) unique in Australia in that it specifically states that religious schools can discriminate on the basis of intersex status (despite there being no supporting evidence of doctrines, tenets or beliefs which discriminate against people born with intersex variations), and
  • The general religious exception in sub-section 50(c) may still apply, for the same reason that it may allow religious schools to discriminate against LGBT students – meaning it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

There is one final religious exception which allows discrimination against LGBTI South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their intersex status, gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBTI people in a wide range of circumstances, including healthcare, community services, associations and in education (although there is some uncertainty about how far the exceptions apply in that area).

[NB In late 2020, the South Australian Liberal Government released the Equal Opportunity (Religious Bodies) Amendment Bill 2020 for public consultation. This Bill would remove any ability for religious schools to discriminate against LGBT students (although not teachers) as well as limiting the special privileges of religious organisations to discriminate against both LGBT employees and people accessing their services in other nominated areas (such as housing, health and aged care).

However, this would still permit discrimination in other areas (such as university education). Therefore, while if passed this Bill would represent a significant improvement from the current provisions of the Equality Opportunity Act 1984 (SA), it would nevertheless fall well short of the best practice approach to religious exceptions in the Anti-Discrimination Act 1998 (Tas). For more information, please see my submission in response to the Equal Opportunity (Religious Bodies) Amendment Bill 2020.]

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Anti-Vilification Coverage

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

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Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

“This Division does not apply to discrimination on the ground of sex, sexual orientation, gender identity or intersex status in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation, gender identity or intersex status.”

It is difficult to think of many jobs in which it is an inherent requirement that someone be of a particular sexual orientation, gender identity or intersex status. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity”, for “persons of a particular sexual orientation (other than heterosexuality), or for “persons of intersex status”, noting that heterosexuality remains privileged within Australian society).

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation, gender identity or intersex status, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

It remains to be seen whether the Liberal Government, under Premier Steven Marshall, will take any action to improve the South Australian Equal Opportunity Act 1984.

_MEG1426_0

Will Liberal Premier Steven Marshall amend South Australia’s out-dated Equal Opportunity Act 1984?

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

Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.

What’s Wrong With Western Australia’s Equal Opportunity Act 1984?

This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other articles in the series can be found here.

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-Vilification Coverage.

Unfortunately, as we shall see below, the Western Australian Equal Opportunity Act 1984 (‘the Act’) has significant problems in terms of all three elements, making it serious competition to the NSW Anti-Discrimination Act 1977 for the (unwanted) title of worst LGBTI anti-discrimination law in the country.

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Protected Attributes

As with most Australian anti-discrimination laws (other than those in the Commonwealth, South Australia, Tasmania and the ACT), the Equal Opportunity Act 1984 only protects some parts of the LGBTI community from discrimination, but not others.

On the positive side, it does include all lesbian, gay and bisexual members of the community – with ‘sexual orientation’ defined in section 4 as:

“in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.”[i]

On the negative side, however, it completely excludes intersex people from anti-discrimination protection, an omission that should be rectified immediately.

On the negative and downright bizarre side, the Western Australian Act adopts a completely unique approach that results in only transgender people whose gender identity as been officially recognised by the State Government benefiting from anti-discrimination coverage.

Specifically, rather than prohibiting discrimination on the basis of gender identity (which would be best practice), the Act only prohibits discrimination against “a gender reassigned person on gender history grounds”.[ii]

Section 4 of the Act states that “gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act”, while section 35AA prescribes that “[f]or the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.”

Prima facie, the combination of these two definitions mean that only people who have transitioned from male to female, or vice versa, and had that transition recognised by the Government via the Gender Reassignment Act are protected from discrimination. People who have yet to transition, or any trans person who is non-binary, are not covered by these clauses. This is a serious flaw, and one that must be corrected by the WA State Government.

Conclusion: While lesbian, gay and bisexual Western Australians are included in the protected attributes of the Equal Opportunity Act 1984, intersex people are completely excluded, as are a large number of trans people (either because their gender identity has not been formally recognised under the Gender Reassignment Act, or because their gender identity is non-binary).

Both flaws should be rectified as a matter of priority, with the adoption of the protected attribute of ‘gender identity’ as found in the Commonwealth Sex Discrimination Act 1984, and the inclusion of ‘sex characteristics’ as called for by intersex activists in the March 2017 Darlington Statement.

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Religious Exceptions

While it’s approach to trans anti-discrimination regulation is unique, the Equal Opportunity Act’s provisions surrounding the rights of religious organisations to discriminate against LGBT people are pretty standard for a state and territory (or even Commonwealth) law[iii]. Unfortunately, that ‘standard’ allows homophobic, biphobic and transphobic discrimination in an incredibly wide range of circumstances.

Section 72 of the Act states:

Religious bodies

Nothing in this Act affects-

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

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

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

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

The first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 72(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBT employees, and LGBT people accessing their services. This is clearly unacceptable.

Religious schools don’t even need to rely on this broad exception. That’s because they have additional, specific protections in section 73, which allow them to discriminate against teachers and other employees (sub-section (1)), contract workers (sub-section (2)), and even students (sub-section (3)).

Sub-section (1) is incredibly generous (with sub-section (2) adopting similar wording):

“(1) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Even though the wording used in relation to students is slightly narrower, it nevertheless envisages discrimination against students on the basis of sexual orientation or against gender reassigned persons on the basis of their gender history:

“(3) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”[iv]

Given education is conducted in the public sphere, it is, in nearly all circumstances, at least partially paid for by taxpayers, and above all it is the right of students to receive a comprehensive and inclusive education free from discrimination, there can be no justification for the continued existence of the exceptions for religious schools outlined in section 73. Just like sub-section 72(d), they should be repealed as a matter of priority.

Conclusion: The religious exceptions contained in the WA Equal Opportunity Act are, sadly, similar to those that exist in most Australian jurisdictions, in that they provide religious organisations generally, and religious schools in particular, extremely generous rights to discriminate against lesbian, gay, bisexual and trans employees and people accessing services. These religious exceptions must be curtailed to better protect LGBT Western Australians against discrimination.

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Anti-Vilification Coverage

This will be the shortest section of this post because, well, there isn’t any: there is currently no prohibition on vilification of LGBTI people under the Equal Opportunity Act 1984. This lack of protection is similar to the Commonwealth, Victoria, South Australia and the Northern Territory.

Interestingly, the Act also excludes racial vilification. Instead, Western Australia has chosen to outlaw racial vilification via the Criminal Code 1913, which creates a total of eight related offences, including:

Section 77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years” and

Section 78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.”[v]

However, there are exactly zero offences outlawing vilification of LGBTI people in the Code. This disparity is completely unjustified, especially given the real and damaging impact of homophobia, biphobia, transphobia and intersexphobia on people’s lives (similar to the detrimental impact of racism).

If vilification offences are to be retained, as I believe they should (even if some right-wing Commonwealth MPs and Senators may disagree), then they should be expanded to cover vilification against members of the LGBTI community.

Conclusion: Neither the Equal Opportunity Act nor the Criminal Code prohibit LGBTI vilification, despite the latter creating a number of offences against racial vilification. Similar offences should also be established against the vilification of lesbian, gay, bisexual, transgender and intersex Western Australians.

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Other Issues

We have already seen, under ‘Protected Attributes’ above, that the Equal Opportunity Act offers only limited anti-discrimination protections to Western Australia’s trans and gender diverse community.

Unfortunately, this ‘anti-trans’ approach is replicated in a number of other sections of the Act, and is even featured in the Long Title: “An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, in certain cases, on gender history grounds” [emphasis added].

Note that, not only does ‘gender history’ come last, it is also the only ground which features the qualifier ‘in certain cases’.

The objects of the Act are also exclusionary with respect to trans people. While object (a) in section 3 the Act seeks to ‘eliminate, so far as possible’ discrimination on grounds including sexual orientation and “in certain cases, gender history”, object (d) excludes trans people altogether:

“to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.”

Apparently, promoting recognition and acceptance of transgender people is not a priority.

This approach is also reflected in substantive parts of the Bill. Whereas section 35ZD allows discrimination in favour of people on the basis of their sexual orientation “to ensure that persons of a particular sexual orientation have equal opportunities with other persons” and “to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs” (ie positive discrimination), there is no equivalent section for transgender people (or gender reassigned people with a gender history).

There is even a sub-section (74(3a)) that ensures an aged care service cannot discriminate solely in favour of transgender people (even though other aged care services can discriminate on the basis of ‘class, type, sex, race, age or religious or political conviction’[vi]).

Even the way some sections of Part IX, which aims to provide ‘Equal opportunity in public employment’, are drafted indicate that transgender discrimination is to be considered separately. For example, section 140 states:

“The objects of this Part are-

(a) to eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or the publication of relevant details on the Fines Enforcement Registrar’s website; and

(aa) to eliminate and ensure the absence of discrimination in employment against gender reassigned persons on gender history grounds; and

(b) to promote equal employment opportunity for all persons.”[vii]

It is bizarre that even the protected attribute of ‘publication of relevant details on the Fines Enforcement Registrar’s website’ is included with sex, race and sexual orientation (among others), while gender reassigned persons are included in a separate sub-section.

Whenever the Western Australian Equal Opportunity Act 1984 is finally updated to ensure all transgender and gender diverse people are protected from discrimination, these additional sections will need to be updated to ensure that, as a protected attribute, gender identity is finally treated equally to other attributes.

Update:

In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and publicity about the issue of discrimination against LGBT students and teachers in religious schools.

In March 2019, the Law Reform Commission of Western Australia confirmed the details of this review (which can be found here).

Importantly, from an LGBTI perspective, this includes consideration of:

a. the objects of the Act and other preliminary provisions;

b. the grounds of discrimination including (but not limited to) introducing grounds of gender identity and intersex status;

e. the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification;

g. exceptions to grounds of discrimination including (but not limited to) those for religious institutions;

l. interaction with the Commonwealth Marriage Amendment (Definition and Religious Freedoms) Act 2017 and with other relevant Commonwealth laws or proposed laws.

It will be essential for LGBTI advocates within WA, and with support nationally, to engage with the Law Reform Commission process, and then to pressure the McGowan Government to bring the Equal Opportunity Act 1984 into the 21st century.

Update 11 July 2020:

Unfortunately, while the Law Reform Commission process was commenced in early 2019, as of mid-2020 there have been no official consultations or publications arising from this Review. The website for the inquiry has not even been updated since 6 March 2019. With the next State election due on 13 March 2021, it is now highly unlikely the Review will be completed this term.

Mark McGowan

Will WA Labor Premier Mark McGowan, elected in March 2017, update the out-dated Equal Opportunity Act 1984?

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

Footnotes:

[i] With discrimination on the basis of sexual orientation then prohibited under Part IIB of the Act.

[ii] Section 35AB.

[iii] Other than Tasmania’s exceptions, which are significantly narrower and, to a lesser extent, Queensland’s and the Northern Territory’s.

[iv] Interestingly, the phrase “other than the grounds of race, impairment or age” is omitted from the exceptions relating to teachers and contract workers – presumably religious schools can discriminate on these attributes then too.

[v] Other related offences include:

79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

80 Possession of material that is likely to incite racial animosity or racist harassment

80A Conduct intended to racially harass

80B Conduct likely to racially harass

80C Possession of material for display with intent to racially harass

80D Possession of material for display that is likely to racially harass

[vi] Sub-section 74(2)(a).

[vii] Section 146 includes a similar delineation.

What’s Wrong With the ACT Discrimination Act 1991?

This post is part of a series looking at Australia’s anti-discrimination laws, analysing them to determine how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles in the series can be found here.

In each post, the laws of each jurisdiction are assessed in relation to the following three areas:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

Based on these criteria, the Australian Capital Territory Discrimination Act 1991 was already better than average in terms of its LGBTI anti-discrimination laws. The good news is that, as a result of the passage of the Discrimination Amendment Act 2016 and the Discrimination Amendment Act 2018, the ACT’s LGBTI protections have improved further.

However, while many of the previous issues with this Act have been remedied, this doesn’t mean the ACT’s law is without faults – chief among them the ongoing broad exceptions provided to religious organisations (other than schools) allowing them to discriminate against LGBTI people.

Nevertheless, let’s focus on the positives first:

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Protected Attributes

The ACT Discrimination Act 1991 includes sexuality as a protected attribute in section 7(1)(w), which is defined in the Act’s dictionary as ‘heterosexuality, homosexuality (including lesbianism) or bisexuality’. This includes all of LGB people, and is better than some jurisdictions (including NSW, which excludes bisexuals), but could be improved by adopting the more inclusive term ‘sexual orientation’.

As a result of the Justice Legislation Amendment Act 2020, the Act’s protected attribute of gender identity in section 7(1)(g) is now defined as:

the gender expression or gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

Note Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past.

This includes all trans and gender diverse people, including those with non-binary gender identities.

Finally, 2016 amendments added intersex status as a protected attribute in section 7(1)(k), defined as ‘status as an intersex person’ – however, intersex advocates called for discrimination protections to be based on ‘sex characteristics’ in the influential March 2017 Darlington Statement.

In August 2020, the ACT Government responded, replacing intersex status with sex characteristics, with a definition based on the Yogyakarta Principles plus 10 (from the Act’s Dictionary:

sex characteristics-

(a) means a person’s physical features relating to sex; and

(b) includes-

(i) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(ii) the person’s chromosomes, hormones and secondary physical features emerging as a result of puberty.

The ACT is now one of only four Australian jurisdictions to provide coverage for lesbian, gay, bisexual, transgender and gender diverse and intersex people, the others being the Commonwealth, Tasmania and South Australia, and more importantly has up to date definitions for all attributes.

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Anti-Vilification Coverage

The ACT’s vilification protections also cover all parts of the LGBTI community, with prohibitions on vilification on the basis of sexuality, gender identity and intersex status (making it only the second jurisdiction, after Tasmania, to cover anti-intersex vilification – although again note the calls by intersex organisations for this term to be replaced by the protected attribute of sex characteristics).

In fact, the ACT’s LGBTI vilification protections are now the equal best in the country, given the offence of serious vilification, contained in section 750 of the Criminal Code 2002, applies to serious vilification on the basis of intersex status (the other jurisdiction with best practice anti-vilification laws is Tasmania).

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Religious Exceptions

On the basis of the above, it is clear the ACT now has close-to-best practice anti-discrimination laws in terms of their protected attributes (covering all parts of the LGBTI community) and anti-vilification coverage (again, protecting lesbian, gay, bisexual, transgender and intersex people).

Alas, the Discrimination Act 1991 falls down (from its pedestal) when it comes to religious exceptions, aka special provisions that allow religious organisations to discriminate against people on the basis of their sexual orientation, gender identity or intersex status.

The primary religious exceptions are outlined in section 32 Religious bodies, which states that:

“Part 3 [which contains the prohibitions of discrimination] does not apply in relation to-

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

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

(c) the selection or appointment of people to exercise functions for the purposes of, or in connection with, any religious observance or practice; or

(d) any other act or practice (other than a defined act) of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

As has been noted in previous posts, the first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 32(d) is effectively a blanket exception that allows any religious organisation – including religious-operated hospitals and community and social services – to discriminate against LGBTI employees, and LGBTI people accessing their services. This is clearly unacceptable.

Nevertheless, recent amendments passed by the ACT Parliament in the wake of the Ruddock Religious Freedom Review have at least ensured that these religious exceptions do not permit religious schools to discriminate against LGBTI students or teachers and other staff.

The Discrimination Amendment Act 2018 abolished the specific exception for ‘Educational institutions conducted for religious purposes’ which was previously found in section 33 (see footnotes*).

Importantly, it also amended the general religious exception in section 32(1)(d) so that it does not apply to ‘defined acts’, which section 32(2) defines as:

means an act or practice in relation to-

(a) the employment of contracting of a person by the body to work in an educational institution; or

(b) the admission, treatment or continued enrolment of a person as a student at an educational institution.

In short, religious schools now cannot discriminate against LGBTI students, teachers and other staff on the basis of their sexuality, gender identity or intersex status.

The ACT Government has instead adopted the best-practice Tasmanian approach where religious schools can discriminate in terms of the admission of students and employment of teachers on the grounds of the student or teacher’s respective religious belief (although they’ve gone further than Tasmania by requiring any school that wishes to discriminate in this way to publish its policies up-front – section new section 46(2)-(5)).

However, the ACT Government has left in place – at least for the moment – the special privileges that allow religious organisations other than schools, such as hospitals, community and social services, to discriminate against employees and people accessing those services on the basis of their sexuality, gender identity or intersex status.

There can be no justification for such wide-ranging discrimination. Hopefully, with the issue of discrimination by religious schools now addressed, the ACT Government can move on to limiting discrimination by these other bodies too – although time is running out before the next election, due on 17 October 2020.

andrewbarr

ACT Chief Minister Andrew Barr, who has successfully removed the right of religious schools to discriminate against LGBTI students and teachers, but still needs to address religious exceptions for other organisations.

Summary

As a result of amendments in both 2016 and 2018, the ACT Discrimination Act 1991 now protects all sections of the LGBTI community from discrimination. It also features the equal best anti-vilification coverage of any state, territory or federal framework in Australia, and has prohibited discrimination by religious schools against LGBTI students, teachers and other staff.

However, the ACT Government still needs to take action to limit the ability of other religious organisations, including hospitals, community and social services, to discriminate against employees and people accessing their services on the basis of sexuality, gender identity or intersex status.

 

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Footnotes:

NB Footnotes [i] to [iv] have been deleted as a result of editing.

*The Discrimination Amendment Act 2018 abolished section 33 of the Act, which previously provided:

“Educational institutions conducted for religious purposes

(1) Section 10 or 13 [which prohibit discrimination against applicants, employees and contract workers] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-

(a) employment as a member of the staff of an educational institution; or

(b) a position as a contract worker that involves doing work in an educational institution;

if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(2) Section 18 [which prohibits discrimination in relation to education] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

What’s Wrong With the Northern Territory Anti-Discrimination Act?

This post is part of a series of posts looking at Australian anti-discrimination laws and analysing how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles can be found here.

These articles look at the laws that exist in each jurisdiction, and assess them in three key areas:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

Unfortunately, the Northern Territory Anti-Discrimination Act has significant problems in relation to all three issues, meaning there is plenty of work to do for the Legislative Assembly to ensure LGBTI people are adequately protected against discrimination and vilification.

Protected Attributes

Sub-section 19(1) of the Northern Territory Anti-Discrimination Act sets out the grounds on which discrimination is prohibited, including “19(1)(c) sexuality.”

Sexuality itself is defined in section 4 of the Act as: “sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.”[i]

On a positive note, employing this definition means the Act does offer protection to lesbians, gay men and bisexual people (something not all state and territory laws do – for example, New South Wales does not cover discrimination or vilification against bisexual people). Although arguably it could still benefit from the more inclusive definition of ‘sexual orientation’, as featured in the Commonwealth Sex Discrimination Act 1984[ii].

However, there are significant problems in terms of the Act’s application to discrimination against transgender people. First, because it includes ‘transsexuality’ within the term ‘sexuality’, when it is in fact about gender identity.

Second, and more importantly, by using the word ‘transsexuality’ rather than transgender (or including the term ‘gender identity’[iii] as its Commonwealth equivalent does, which would be preferred), it is possible that the Act fails to protect transgender people who are not ‘transsexual’ from discrimination, which is clearly a significant failing.

Another significant failing is the complete absence of protection against discrimination for intersex people. This stands in contrast to the Commonwealth, Tasmania, the ACT and South Australia who have all prohibited discrimination on the basis of ‘intersex status’[iv].

Summary: The Act does cover discrimination against lesbian, gay and bisexual Northern Territorians (although it could be further improved by adopting a more inclusive definition of sexual orientation). However, by using the term ‘transsexuality’, and including it within the term ‘sexuality’, it is likely the Act does not cover all transgender people. It also fails to offer any protection to intersex people.

Religious Exceptions

There are some positive, but also several negative, features of the Northern Territory Anti-Discrimination Act in terms of the special rights it grants religious organisations to discriminate against LGBTI people.

The primary provision establishing ‘religious exceptions’ is section 51:

“This Act does not apply to or in relation to:

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

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

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

The drafting of these exceptions is actually relatively narrow when compared with those that exist in other states and territories.

For example, while the first two paras above (section 51(a) and (b)) are identical to the NSW Anti-Discrimination Act 1977 section 56(a) and (b), the NSW legislation subsequently goes much further, allowing discrimination in relation to:

“(c) the appointment of any other person in any capacity by a body established to propagate religion; or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

In contrast, the primary Northern Territory provision appears to more closely target the appointment of ministers of religion, and religious celebrations and practices, rather than the more nebulous criteria of ‘avoid[ing] injury to the religious susceptibilities of the adherents of that religion”.

Indeed, depending on the scope of ‘religious observance or practice’, and how this phrase has been interpreted by the judiciary, the NT provision is arguably more justifiable on the basis it seems to be concerned with religious freedom, rather than providing religious organisations with carte blanche to discriminate against LGBTI people.

Unfortunately, the same cannot be said of other sections of the Act. Section 37A provides an incredibly broad exception to religious schools:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

In effect, any religious school in the Northern Territory can discriminate against any employee or potential employee solely because they are LGBTI, irrespective of the role and no matter how qualified they may be. This is simply unacceptable and must be removed.

The section covering discrimination against students is not as broad. Sub-section 30(2) provides that:

“An educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”

Note that this only permits discrimination against students on the basis of their religion, and not because of their sexuality (or transsexuality). This is to be welcomed and, if 51(d) (above) has been interpreted narrowly, means LGBT students are protected against discrimination in NT religious schools.

The other provision that grants special rights to religious organisations to discriminate is sub-section 40(3), in relation to accommodation:

“A person may discriminate against a person with respect to a matter that is otherwise prohibited under this Division if:

(a) the accommodation concerned is under the direction or control of a body established for religious purposes; and

(b) the discrimination:

(i) is in accordance with the doctrine of the religion concerned; and

(ii) is necessary to avoid offending the religious sensitivities of people of the religion.”

If discrimination in relation to the appointment or training of ministers of religion is already allowed under section 51(a) and (b), which would presumably include the facilities used for housing these ministers/trainees, it is difficult to see how this particular section would be justified. As a result, it should be repealed alongside section 37A.

Summary: The main religious exceptions offered under the NT Act are relatively modest when compared to some other states and territories. Provided that ‘religious observance or practice’ has been interpreted to mean religious ceremonies and little else, section 51 may not require substantial amendment.

However, there is no justification for discrimination against LGBTI employees or potential employees in religious schools, meaning section 37A should be repealed as a matter of priority. Sub-section 40(3), allowing discrimination in relation to accommodation, also appears excessively broad.

Anti-Vilification Coverage

The Northern Territory is the only jurisdiction in Australia that does not prohibit racial vilification. In which case, it is perhaps unsurprising that there are no prohibitions on vilification against LGBTI people either (the definition of ‘discrimination’ in section 20(1) does include “harassment on the basis of an attribute”, however this falls far short of the usual standard of ‘offend, insult, humiliate or intimidate’[v]).

The Government should introduce prohibitions against anti-LGBTI vilification, as well as in relation to other attributes, including race.

Michael_Gunner

Will Chief Minister Michael Gunner fix the NT Anti-Discrimination Act?

On a positive note, during this term of Parliament the Northern Territory Government released a discussion paper looking at Modernisation of the Anti-Discrimination Act. It included examination of all of the above issues (protected attributes, religious exceptions and anti-vilification coverage), with submissions due by 31 January 2018.

However, more than two years later and nothing appears to have come from this consultation. Which means that, heading into the next Northern Territory election on 22 August 2020, the NT Anti-Discrimination Act remains in desperate need of reform. Will whoever is elected by up to the challenge?

 

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Footnotes:

[i] It should be noted here that these concepts (heterosexuality, homosexuality, bisexuality and transsexuality) are not further defined in the legislation.

[ii] Section 4: “sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[iii] “[G]ender 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.”

[iv] In March 2017, intersex activists from around Australia released the Darlington Statement which called for the protected attribute of ‘intersex status’ to be replaced by ‘sex characteristics’. For more information, see the OII Australia website, here.

[v] For example, sub-section 18C of the Commonwealth Racial Discrimination Act 1975 provides that:

“(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people…”

Letter to Paul Lynch re LGBTI Anti-Vilification Reform

In June, NSW Shadow Attorney-General Mr Paul Lynch MP introduced the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. Details of the Bill can be found here.

 

In short, the legislation seeks to implement the recommendations of the Legislative Council Standing Committee on Law and Justice’s 2013 Inquiry into Racial Vilification Law in NSW.

 

Importantly, in doing so the Bill ignores the Report’s (implicit) approach to treat racial vilification differently from the other forms of vilification currently prohibited by the Anti-Discrimination 1977: namely homosexual, transgender and HIV/AIDS vilification.

 

Just as importantly, however, the Bill fails to update the definitions of these grounds, and also fails to extend anti-vilification coverage to bisexual and intersex people in NSW.

 

The following is my letter to the Shadow Attorney-General about his Bill, sent before the return of State Parliament next week (Tuesday 2 August 2016).

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

I am writing to you about your Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 (‘the Bill’), currently before NSW Parliament.

 

Specifically, I am writing to congratulate you on what is included in the Bill, while also encouraging you to amend the Bill to address other inadequacies within the NSW anti-vilification framework.

 

First, to the positives. I welcome the fact that the Bill removes one of the more bizarre and, in my opinion, completely unjustifiable aspects of the NSW Anti-Discrimination Act 1977 (‘the Act’) – that the penalties for the offences of serious racial and HIV/AIDS vilification are different to, and slightly higher than, the penalties for the offences of serious homosexual and transgender vilification.

 

By consolidating these offences in one place – the proposed new section 91N of the NSW Crimes Act 1900 – your Bill would ensure there is no difference in severity in how these offences are treated by the Government, and therefore avoids sending the signal that some forms of vilification are worse than others.

 

I also welcome the fact you have avoided one of the key pitfalls of the Legislative Council Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law in NSW, which, given it exclusively focused on racial vilification, only suggested changes to the laws surrounding one of the four existing attributes that attract anti-vilification protection.

 

Were these recommendations to be implemented in their entirety (and no other changes made), it would exacerbate, rather than remove, the inequality in treatment between serious racial vilification and the three other current grounds (homosexual, transgender and HIV/AIDS vilification).

 

I further support the substantive amendments proposed in your Bill, including:

 

  • Removing the requirement for the Attorney-General to give consent to prosecution for any vilification offence
  • Extending the time within which prosecutions for vilification offences must be commenced from 6 months to 12 months (addressing a flaw in the current Act highlighted by the case of Simon Margan v Director of Public Prosecutions & Anor [2-13] NSWSC 44)
  • Adopting the recommendation of the Law and Justice Standing Committee report that recklessness is sufficient to establish intention to vilify
  • Clarifying which public acts constitute unlawful vilification
  • Providing that vilification applies whether or not the person or members of the group vilified have the characteristic that was the ground for the promotion of hatred, contempt or ridicule concerned, and
  • Ensuring that the President of the Anti-Discrimination Board refers vilification complaints to the Commissioner of Police where the President considers that the offence of serious racial, transgender, homosexual or HIV/AIDS vilification may have been committed.

 

In terms of the proposal to replace ‘incitement’ with ‘promotion’ within the definition of vilification itself, while I have not had the opportunity to examine this amendment in great depth, on a prima facie basis it appears reasonable.

 

Finally, I agree with your decision to relocate the offence of serious vilification to the Crimes Act 1900, for the reasons outlined in your Second Reading Speech:

 

“Certainly, the legal effect of a provision should be the same whether it is located in the Crimes Act or in the Anti-Discrimination Act. However, there is significant symbolism in the provision being located in the Crimes Act in the new section 91N. And symbolism, as everyone in this Chamber knows, is important.”

 

Now, I will turn my attention to the shortcomings of the Bill and, unfortunately, in my opinion they are significant.

 

Specifically, while what the Bill includes is to be welcomed, it is flawed because of what it excludes. It fails to address one of the main problems of the Anti-Discrimination Act 1977, which is that it only protects some parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and not others.

 

As I have detailed elsewhere (see “What’s wrong with the NSW Anti-Discrimination Act 1977?”), the out-dated terminology used in the Act means that only lesbian, gay and transgender people are protected (and even then not all transgender people are covered).

 

Meanwhile, there is still no anti-vilification protection for bisexual people, or for intersex people, in NSW (with the absence of Commonwealth LGBTI anti-vilification laws only compounding this problem).

 

In my view, the limited coverage offered by the NSW anti-vilification framework is an even greater problem than those issues identified by the Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law.

 

As such, I believe this issue should be addressed before, or at least simultaneously to, those provisions contained in your Bill. Otherwise, the differential treatment of groups within the LGBTI community would only become further entrenched.

 

For these reasons, I strongly encourage you to consider amending your Bill to ensure that all sections of the LGBTI community are protected against vilification. To achieve this, you may wish to incorporate the definitions included in the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This would involve:

 

  • Replacing the current protected attribute of homosexual with ‘sexual orientation’ (and which would therefore cover bisexual people)
  • Amending the protected attribute of transgender to the more inclusive term ‘gender identity’, and
  • Introducing the new protected attribute of ‘intersex status’.

 

If you are interested in pursuing these changes then I also encourage you to consult with the LGBTI community, and its representative organisations, beforehand (to ensure that any consequential difficulties are avoided).

 

To conclude, and despite the issues described above, I genuinely welcome the provisions contained in the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. However, by extending the scope of vilification offences to protect bisexual and intersex people, I sincerely believe you would significantly improve your legislation.

 

Thank you for your consideration of this letter. I am of course happy to discuss any of the issues raised at the contact details provided below.

 

Sincerely,

Alastair Lawrie

 

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NSW Shadow Attorney-General Paul Lynch