Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

Posted on April 24, 2014 by Alastair Lawrie

The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees Sent to Manus Island, PNG

Posted on February 2, 2014 by Alastair Lawrie

UPDATE: Sunday 20 July 2014

On Friday 18 July, I received the following response from the Department of Immigration and Border Protection, to my correspondence about the treatment of LGBTI asylum seekers and refugees:

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

If homosexual activity should occur in the OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

Even though we are more than a decade into our post-Tampa nightmare of refugee policy in Australia, it is still shocking to see people simply seeking asylum in Australia described, by government officials, as Illegal Maritime Arrivals (IMAs). And it is probably almost as shocking realising that the same government official doesn’t even need to spell out what an OPC is anymore, instead it is taken as a given.

While the letter acknowledges there is no mandatory reporting of homosexual activity under PNG law, it explicitly does not state that there is no reporting of homosexual activity to PNG Police, or refute the claim that asylum seekers have been told they will be reported if found to engage in such activity.

It is difficult to accept the statement that “[t]o assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met” from the same Government that is responsible for the death, in custody, of Reza Berati just over two weeks after I wrote my initial letter.

It is obviously welcome that, at least on paper, the Government claims it makes condoms available to asylum seekers on Manus Island – although whether they are made available in reality would be difficult to verify (given the shroud of secrecy surrounding, and lack of journalist access to, the detention facilities in PNG and Nauru).

The main problem remains however, and that is there is no firm commitment not to send LGBTI asylum seekers for ‘processing’ to countries which criminalise homosexuality, and no commitment that LGBTI refugees will not be permanently resettled in countries where they are liable to punishment merely for sexual intercourse.

The process outlined in the letter – that an asylum seeker must make a claim against the laws of PNG or Nauru prior to their transfer, is farcical given what we know about the current way asylum seekers are being assessed: while they are detained on navy or customs vessels, on the open sea, through a short interview (with as few as four questions by some reports) via teleconference to officials in mainland Australia. It is outrageous to suggest that the only way a gay asylum seeker can avoid being sent to another country which criminalises their sexual orientation is to declare their sexual orientation at short notice, whilst intimidated by naval or customs personnel (and potentially while intimidated by other asylum seekers, including possible family members), and to specifically claim protection against countries which they may not even be aware they are being taken to, and may not know criminalise homosexuality.

While I certainly wasn’t expecting to take much comfort from this response from the Department of Immigration and Border Protection, it is still depressing to realise that, yet again, so little solace is to be found.

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

TREATMENT OF LGBTI ASYLUM SEEKERS AND REFUGEES SENT TO MANUS ISLAND, PAPUA NEW GUINEA

I am writing regarding the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers and refugees sent to Manus Island, Papua New Guinea, both for offshore processing and permanent resettlement.

In particular, I am writing about concerning allegations raised in the Amnesty International Report This is Breaking People: Human rights violations at Australia’s asylum seeker processing centre on Manus Island, Papua New Guinea, which was released on 11 December 2013.

Chapter 8 of that report, titled ‘Asylum claims on the basis of sexual orientation’ (pages 73-75), details a range of serious allegations about the mistreatment of LGBTI asylum seekers sent to Manus Island for processing.

Specifically, Amnesty International found that:

Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there
Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police (despite no requirement for mandatory reporting)
Gay asylum seekers have reported being subject to bullying and harassment from other detainees and staff, including physical and verbal abuse and attempted molestation, but are not reporting this abuse because of fear of prosecution for their homosexuality
Interviewees have indicated that some gay asylum seekers have changed or are considering changing their asylum claim, from persecution on the basis of sexual orientation to persecution on another ground, in order to avoid prosecution (thereby jeopardising the chances of their claim ultimately being accepted)
Interviewees have indicated that some gay asylum seekers have chosen to return home, despite the risks involved to the personal safety/liberty, rather than be subjected to ongoing mistreatment because of their sexual orientation on Manus Island and
Condom distribution has been banned within the Manus Island detention facility, despite the risk of HIV transmission.

In these circumstances, it is perhaps unsurprising that Ms Renate Croker, the senior official from the Department of Immigration & Border Protection located at the Manus Island detention facility, told Amnesty International that “she was unaware of any asylum claims being made on the basis of LGBTI identity.”

Not only is this contradicted by the Amnesty Report – which interviewed a man who reported that his claim was based on persecution due to his sexual orientation, and who expressed concern about being transferred to Manus Island for this reason – it also ignores the fact that some gay asylum seekers may have changed their claims to other grounds (for the reasons outlined above), or that some asylum seekers may happen to be LGBTI but their claim is in fact based on persecution on other grounds (for example, race or religion).

Irrespective of how their claim is being dealt with, the Australian Government has a responsibility to protect the human rights of any and all LGBTI asylum seekers who have sought protection in Australia. This includes the right to freedom from prosecution on the basis of sexual orientation, gender identity or intersex status, the right to claim asylum and the right to health.

From the information contained in the This is Breaking People report, it seems the Australian Government is falling well short of its obligations in this area.

I should note at this point that I am strongly opposed to the offshore processing and permanent resettlement of any asylum seekers by the Australian Government. This policy does not constitute a humane response, nor does it live up to our international humanitarian and legal responsibilities.

However, the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognized by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protection on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.

If you, as Minister for Immigration and Border Protection, cannot guarantee that all asylum seekers and refugees, including but not limited to LGBTI people, have access to condoms, then you are potentially endangering their lives and you should be held accountable for any health problems which occur as a result (noting that HIV continues to be life-threatening in the absence of treatment).

It has been clear since the reintroduction of offshore processing of asylum seekers in Nauru and Papua New Guinea, passed by the previous Labor Government and supported by the Liberal-National Opposition in mid-2012, that the criminalisation of homosexuality in these countries constituted a significant threat to the human rights of LGBTI asylum seekers sent there.

Indeed, I wrote to you as Shadow Minister for Immigration expressing my concerns about this exact issue in September 2012. I did not receive a response addressing the subject of LGBTI asylum seekers prior to your assumption of the role of Minister for Immigration and Border Protection in September 2013.

I sincerely hope, now that you are the person directly responsible for the health and wellbeing of asylum seekers and refugees, and especially after the Amnesty International Report This is Breaking People has confirmed that these human rights abuses are real, that you take this issue, and your responsibilities, seriously.

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

A copy of the Amnesty International Report This is Breaking People, can be found here: <http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

LGBTI refugees on Nauru & Manus Island

Posted on June 30, 2013 by Alastair Lawrie

So, the past few weeks have been pretty busy (with the SDA Bill and my Change.org petition to help ensure the national Health & Physical Education curriculum is genuinely LGBTI-inclusive). One thing which happened earlier in June, which I had previously committed to place on my blog, is that I finally received a response to my letter to the then Minister for Immigration, Chris Bowen – which I first sent in September 2012!

It has only taken 9 months, including a follow up letter to Minister Bowen, a new message to Minister Brendan O’Connor, who was appointed in February, and then some ongoing twitter harassment/stalking. Even after all of this the response which I have received is not from the Minister himself (either of them) but rather from the Director of the relevant Branch in the Department.

I have included the full text of the letter below. But I have chosen to omit the name of the Branch Director, because as a former public servant I can only imagine that they were instructed to draft the letter in this particular way, and after all, this is about the Government’s policy and not an individual.

In my original letter (see: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/), amongst other questions, I asked whether the Government supported the rights of LGBTI people to seek asylum, as well as whether these asylum seekers would be subject to the laws of Nauru and Papua New Guinea (Manus Island) which still criminalise homosexuality.

The response to the first question appears to be yes – the letter at least accepts the fact that people can claim refugee status on the basis of sexual orientation and gender identity (although it is less clear that intersex status is accepted). How well Australia implements this commitment is, of course, a much longer discussion.

However, the letter refuses to answer the second key point. I can only assume that, based on the Director’s avoidance of this issue, the criminal offences relating to homosexuality in Nauru and Papua New Guinea do, at the very least, technically apply to the asylum seekers which we as a country distressingly continue to send to these places.

The letter then rather cryptically goes into detail about what individuals can do if they object to being transferred to a particular Regional Processing Country. While I would fully expect that the ‘Ministerial discretion’ which is alluded to would be exercised to override such concerns, I believe that the lawyers who represent LGBTI asylum seekers being sent to Nauru or Manus Island should at the very least raise their concerns under s198AE with the Minister (whoever that might be after the reshuffle tomorrow).

As an aside I don’t actually think that it matters whether the particular asylum seeker is seeking protection because of persecution on the basis of sexual orientation or gender identity (or intersex status), merely that they are LGBTI and fear persecution by the Governments of Nauru or Papua New Guinea because of their ongoing criminalisation of same-sex activity.

I will now endeavour to ensure that LGBTI and/or general refugee advocates are aware of this advice and can take any appropriate steps (noting that these applications may have already been made to, and rejected by, the Minister for Immigration since the detention centres were reopened last August).

Overall, of course, even if LGBTI asylum seekers were removed from Nauru and Manus Island, this would only be ‘fiddling at the edges’ of the revived Pacific Solution, a policy so awful that it brings shame to the entire Australian population, myself included. No asylum seeker, whether LGBTI or not, should ever be sent to such places, for an indefinite period, merely for exercising their fundamental right to seek protection from persecution.

Most depressingly of all, the upcoming federal election doesn’t appear like it will change these policies – if anything, the probable election of Tony Abbott as Prime Minister, with Scott Morrison as Minister for Immigration, will make things substantially worse.

On that ‘glass-completely-empty’ note, here is the response from the Department which only took 9 months to conceive:

Dear Mr Lawrie,

Thank you for your email of 7 September 2012 to the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, concerning the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers. Your letter has been referred to me for a reply. I apologise for the delay in responding.

The Australian Government’s commitment to removing discrimination was demonstrated by its reforms to remove discrimination from 85 Commonwealth laws. These reforms, which passed in 2009, removed discrimination and equalised treatment for same-sex couples in areas of taxation, social security, health, aged care, superannuation, immigration, child support and family law.

The Government is also proceeding with introducing long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. On 21 March 2013, the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This Bill will ensure that protections from discrimination for people who are gay, lesbian, bisexual, transgender and intersex are put in place as soon as practicable.

Concerning the transfer of post-13 August 2012 irregular maritime arrivals (IMAs) to Regional Processing Countries (RPC) and the treatment of LGBTI asylum seekers, as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention), Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugees Convention and other human rights treaties to which Australia is a party. Any person has the right to seek protection in Australia from persecution in their home country.

The Government has signed Memoranda of Understanding (MoU) with the Governments of Nauru and Papua New Guinea which permit people who arrived irregularly by boat on or after 13 August 2012 to be taken to Nauru or Papua New Guinea (Manus Island) for assessment of their claims against the Refugee Convention. Changes to the Migration Act 1958 (the Act) which give effect to regional processing arrangements were passed by the Australian Parliament and became law on 18 August 2012.

The MoU signed with Nauru and Papua new Guinea reaffirms the commitment of both countries to the Refugee Convention, with people transferred to the Regional Processing Country (RPC) to be treated with dignity and respect in line with human rights standards.

The Department of Immigration and Citizenship recognises that human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their
sexual orientation and/or gender identity.

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Also for your information, I attach a copy of the relevant sections of PAM3 regarding gender and sexual orientation. For a full interactive copy of that document you may need to contact your nearest public library which should be able to provide free access.

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

Sex Discrimination Amendment Bill 2013 – The Final Countdown

Posted on June 7, 2013 by Alastair Lawrie

There are now only two sitting weeks left before the upcoming federal election. Which means there are only 8 days during which Parliament can pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, historic legislation which would finally provide federal anti-discrimination protections to Australia’s lesbian, gay, bisexual, transgender and intersex community.

It goes without saying that this could go down to the wire. Which is why I sent the email posted below to all cross-bench MPs, as well as key figures in the Opposition and Greens (and a slightly re-worded version to the Government). I don’t think that we, as members of the LGBTI community, should ‘die wondering’ about this Bill. So, I would encourage you to consider sending you own emails to these parliamentarians, to help get the Sex Discrimination Amendment Bill 2013 over the line.

To help you on your way, I have included the email addresses of a range of relevant MPs at the end of this post. And please feel free to ‘borrow’ any and all of the following:

I am writing to you regarding the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

In particular, I am requesting that you:

Please support the Government’s proposed amendments which exclude the operation of religious exceptions in the area of aged care service provision; and
Please support the passage of the amended Sex Discrimination Amendment Bill 2013 in the final two sitting weeks of this Parliamentary term.

This Bill is a significant reform that will benefit the lesbian, gay, bisexual, transgender and intersex (LGBTI) citizens of Australia, because, if passed, it will be the first term LGBTI people will enjoy anti-discrimination protections under federal law.

It is historic because it will be the first time any federal anti-discrimination law, anywhere in the world, explicitly covers intersex people. And the Sex Discrimination Amendment Bill 2013 will also help to protect more people than some state and territory schemes – for example, the NSW Anti-Discrimination Act 1977 does not currently apply to bisexual or intersex people, both groups that are protected under this proposed law.

Unfortunately, the Bill as drafted will ensure that religious organisations are provided with wide-ranging exceptions from otherwise lawful obligations not to discriminate against lesbian, gay, bisexual and transgender people. This will allow religious organisations to continue to discriminate on the basis of sexual orientation and gender identity in employment and service provision, which will operate to undermine the scope and effectiveness of these anti-discrimination provisions. In principle, I do not support the operation of any religious exceptions outside the appointment of religious officials, membership of religious organisations and celebration of religious ceremonies.

However, I understand that LGBTI anti-discrimination legislation which did not contain any religious exceptions would be unlikely to pass the current Parliament. What is possible is for the Sex Discrimination Amendment Bill 2013 to be passed with amendments proposed by the Government that exclude the operation of religious exceptions in the area of aged care provision.

I strongly support the removal of religious exceptions in these circumstances. Older lesbian, gay, bisexual and transgender people should not be subjected to discrimination on the basis of sexual orientation or gender identity when they are accessing aged care services. This is particularly important when you consider that for many people, aged care facilities will be their home for long periods of their life – nobody deserves to be lawfully discriminated against in their home.

Above all, I see this as the very least which should be done for older lesbian, gay, bisexual and transgender Australians. These are people who grew up when homosexuality was still a criminal offence, who had to fight simply for the right to be who they are, who lost partners and friends through the devastation caused by HIV/AIDS, particularly in the 1980s and 1990s. These are people who deserve our respect, not the operation of provisions which could force them back into ‘the closet’ because of the fear of being discriminated against.

It is my sincere hope that all Parliamentarians will vote in favour of the Government’s amendments to exclude the operation of religious exceptions in the area of aged care services.

It is also my sincere hope that all Parliamentarians will unite and work together to ensure that the Sex Discrimination Amendment Bill 2013 is passed, as amended, in the final two sitting weeks of this Parliamentary term.

With Parliament rising on 27 June, there is only limited time to ensure this legislation is passed. Please help ensure that the Bill receives sufficient priority, through both Chambers, that it will finally be made law before the upcoming federal election.

I believe that the lesbian, gay, bisexual, transgender and intersex citizens of Australia, like myself, have waited long enough to be protected under federal anti-discrimination laws. I hope that you agree.

Attorney-General, The Hon Mark Dreyfus QC MP Mark.Dreyfus.MP@aph.gov.au

Mental Health and Ageing Minister, The Hon Mark Butler MP Mark.Butler.MP@aph.gov.au

Leader of the Opposition, the Hon Tony Abbott MP Tony.Abbott.MP@aph.gov.au

Shadow Attorney-General, Senator George Brandis senator.brandis@aph.gov.au

Greens Spokesperson for Attorney-General, Senator Penny Wright senator.wright@aph.gov.au

Greens Spokesperson for LGBTI issues, Senator Sarah Hanson-Young senator.hanson-young@aph.gov.au

Member for Kennedy, the Hon Bob Katter MP Bob.Katter.MP@aph.gov.au

Member for Fisher, the Hon Peter Slipper MP Peter.Slipper@aph.gov.au

Member for Dobell, Mr Craig Thomson MP Craig.Thomson.MP@aph.gov.au

Member for Lyne, Mr Rob Oakeshott MP Robert.Oakeshott.MP@aph.gov.au

Member for New England, Mr Tony Windsor MP Tony.Windsor.MP@aph.gov.au

Member for Denison, Mr Andrew Wilkie MP Andrew.Wilkie.MP@aph.gov.au

Member for O’Connor, Mr Tony Crook MP Tony.Crook.MP@aph.gov.au

Member for Melbourne, Mr Adam Bandt MP Adam.Bandt.MP@aph.gov.au

Senator for South Australia, Senator Nick Xenophon senator.xenophon@aph.gov.au

Senator for Victoria, Senator John Madigan senator.madigan@aph.gov.au

Submission on Human Rights and Anti-Discrimination Bill 2012

Posted on January 9, 2013 by Alastair Lawrie

I am very happy that my submission to the Senate Legal and Constitutional Affairs Committee inquiry into the exposure draft Human Rights and Anti-Discrimination Bill 2012 was published this afternoon

(http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/anti_discrimination_2012/submissions.htm).

The full text of my submission is reproduced below:

Exposure Draft Human Rights and Anti-Discrimination Bill 2012

Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs

Submission by Alastair Lawrie

Friday 21 December 2012

Thank you for the opportunity to make a submission on the exposure draft of the Human Rights and Anti-Discrimination Bill 2012. This submission reflects my personal views on the Bill, and makes a number of recommendations for improvements to the draft legislation to ensure that it provides adequate protection to lesbian, gay, bisexual, transgender and intersex Australians from – what will hopefully be – unlawful discrimination. Nevertheless, these recommendations for improvements do not change my primary recommendation; namely, that the Parliament should pass this Bill as a matter of priority in 2013.

Recommendations:

The Parliament should pass the Human Rights and Anti-Discrimination Bill 2012 as a matter of priority in 2013.
The Bill should retain the exposure draft definitions of ‘sexual orientation’ and ‘relationship status’ so that discrimination on these grounds is prohibited under Commonwealth law.
The Bill should amend the definition of ‘gender identity’ to reflect the Tasmanian Anti-Discrimination Bill 2012 definition, so that it removes the phrase ‘genuine basis’ and includes gender expression and presentation.
The Bill should include the definition of ‘intersex’ as used in the Tasmanian Anti-Discrimination Bill 2012, so that anti-discrimination protections adequately cover this protected attribute.
Exceptions from anti-discrimination requirements should only be provided to religious organisations where it relates to religious appointments or celebrations (for example, appointment of ministers of religion, admission to membership of the religion or celebrating sacraments within the religion).
Religious organisations should not be provided with exceptions in terms of service-delivery, including service delivery in schools and education, healthcare, aged care and other community services.
If Recommendation 6 is not agreed, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which preclude the application of exceptions with respect to aged care service delivery by religious organisations should be retained.
Religious organisations should not be provided with exceptions in terms of employment, in any area outside appointment of ministers of religion or other appointments which are essentially religious in nature.
If either or both recommendations 6 or 8 are not accepted, or if recommendation 7 is accepted, then wherever religious organisations are provided with exceptions with respect to either service delivery or employment, they must publish a statement outlining their intention to discriminate in position descriptions and job advertisements, on their website and in any brochures or advertisements of their service.
The Bill should expand anti-vilification protections to cover sexual orientation, gender identity and intersex.
The Bill should provide for the appointment of a dedicated Sexual Orientation and Gender Identity Commissioner.

The draft Human Rights and Anti-Discrimination Bill 2012 covers subject matter which is close to my heart, and which is also an important issue of public policy; namely, providing legal protections to lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against unjust discrimination, harassment and abuse.

These legal protections are long overdue. By the time this legislation is (hopefully) passed in 2013, it will be 38 years since the passage of the Racial Discrimination Act 1975, 29 years since the Sex Discrimination Act 1984, more than two decades since the Disability Discrimination Act 1992 and almost a decade since the Age Discrimination Act 2004. These Acts were passed to address major problems of discrimination within society on each of these grounds.

Discrimination on the basis of sexual orientation, gender identity and intersex is no less offensive, and tackling this discrimination is no less urgent. It is a failing of successive Commonwealth Governments that they have not introduced anti-discrimination legislation covering these attributes before now, but happily this is something that the current Parliament can address in this term.

There is abundant evidence that discrimination against LGBTI Australians is both serious and widespread. The 2003 NSW Attorney-General’s Department report You Shouldn’t Have to Hide to be Safe, found that 56% of respondents had been the victims of homophobic abuse, violence or harassment in the previous 12 months. 85% of respondents had experienced abuse, violence or harassment at some point in their life. That fact alone is sickening: 5 out of every 6 LGBTI Australians have suffered some form of homophobic abuse, violence or harassment simply for being themselves.

This discrimination can particularly target, and have the most damaging effects on, young people. The Writing Themselves In 3 report found that 60% of young same-sex attracted and gender questioning young people had experienced some form of physical or verbal abuse. Homophobic, bi-phobic and trans-phobic discrimination, and discrimination against intersex people, can have a lasting, negative impact on their mental health, and limit their ability to fully participate in society. LGBTI youth should not have to suffer because of the prejudices of others.

But you do not need to consult these reports to understand that discrimination against LGBTI people is rife. Instinctively, we all know, simply as ordinary members of Australian society, that homophobia is an unacceptably widespread phenomenon, and that it has the potential to affect almost every facet of life. As individuals, we have likely seen it, heard about it, felt its impact on family members or friends.

For those of us who are LGBTI, we have been on the receiving end of this abuse, this violence, this harassment. As a gay man, I have been the victim of numerous counts of homophobic discrimination. I have been ‘moved on’ by police officers simply for kissing another man. I have been yelled at on the street for holding my boyfriend’s hand, and called ‘faggot’ more times than I care to remember. I have been subjected to multiple instances of prejudice and exclusion by my school. And I have probably been discriminated against in other ways which I didn’t even know at the time, because discrimination can be insidious.

My fiancé Steve has similar stories. His lesbian sister and her partner have been discriminated against too, both as individuals, and as mothers in a rainbow family. Steve’s best friends, another lesbian couple, have their own stories of prejudice, as do many of our other gay and lesbian friends. Sadly, each and everyone one of us has our own story of how discrimination has affected our everyday lives, in so many different situations.

What we have not had, until now, is any protection under Commonwealth law against this discrimination. Federal anti-discrimination legislation, covering LGBTI Australians, is essential to complement existing protections under state and territory law, and ensure that there are no holes or gaps in this coverage.

Even more importantly, the passage of this bill would be a statement by our elected leaders that prejudice and discrimination on the basis of sexual orientation, gender identity and intersex will no longer be tolerated. I urge the Commonwealth parliament to pass this law, and do so as quickly as possible.

Recommendation 1: The Parliament should pass the Human Rights and Anti-Discrimination Bill 2012 as a matter of priority in 2013.

The exposure draft Bill already features a useful and inclusive definition for ‘sexual orientation’ which will ensure that lesbians, gay men and bisexuals are afforded anti-discrimination protection. The amendment of the previously protected ground of ‘marital status’ to ‘relationship status’ will also ensure that all relationships are covered, irrespective of the sex or gender of the participants. Both of these definitions should be retained in the final Bill.

Recommendation 2: The Bill should retain the exposure draft definitions of ‘sexual orientation’ and ‘relationship status’ so that discrimination on these grounds is prohibited under Commonwealth law.

I am also supportive of the inclusion of anti-discrimination protection for transgender people. However, I understand that the definition of ‘gender identity’ in the exposure draft Bill requires significant improvement. In particular, it is unclear why the definition includes the additional test of living on a “genuine basis” for transgender people. The definition also does not appear to adequately capture and protect gender expression, including mannerisms and appearance. A much better definition is contained in the Tasmanian Anti-Discrimination Bill 2012, which is currently before their state parliament. That definition should be used in the Commonwealth’s Human Rights and Anti-Discrimination Bill 2012.

Recommendation 3: The Bill should amend the definition of ‘gender identity’ to reflect the 2012 Tasmanian Anti-Discrimination Bill definition, so that it removes the test of ‘genuine basis’ and includes gender expression and presentation.

An even larger drafting problem concerns the definition of, and therefore protection for, intersex people. The exposure draft Human Rights and Anti-Discrimination Bill 2012 appears to try to include intersex under part (b) of gender identity. This is incorrect, because intersex is not a matter of identity, instead it is a biological fact.

It should also be noted that similar definitions which have been included previously under state and territory laws have either operated to provide only limited protection from discrimination to intersex people, or provided no protection at all.

It would be tragic if, 38 years after the Racial Discrimination Act 1975, the Commonwealth parliament finally acted to extend anti-discrimination protection to lesbian, gay, bisexual and transgender people, but, at the same time, failed to cover intersex people and instead further entrenched rather than remedied discrimination on this ground.

Once again, the definition of intersex which has been used in the Tasmanian Anti-Discrimination Bill 2012 appears to offer a better and more inclusive basis for this protected attribute, and one that should be included in the Human Rights and Anti-Discrimination Bill 2012 as a stand-alone attribute, rather than inappropriately subsumed within gender identity.

Recommendation 4: The Bill should include the definition of ‘intersex’ as used in the Tasmanian Anti-Discrimination Bill, so that anti-discrimination protections adequately cover this protected attribute.

One of the most controversial elements of any anti-discrimination regime, and the one that regularly receives the most attention, is the topic of exceptions. In particular, there is usually significant focus on the question of whether religious organisations should be granted exceptions from the obligation not to discriminate on the basis of sexual orientation, gender identity and intersex (and, it must also be noted, on the basis of sex and relationship status). As a result, I will devote the largest section of this submission to addressing these questions, firstly on a philosophical basis and, secondly, on a more personal level.

To begin with, I think it is important to remember the justification for implementing anti-discrimination protections in the first place. These laws are designed to publicly state that some forms of prejudice are not acceptable and to prohibit discrimination on illegitimate grounds (such as race, sex or religion), thereby protecting people from these groups against discrimination in a range of public areas, such as employment, education, healthcare and other forms of service delivery.

By introducing anti-discrimination protections covering sexual orientation, gender identity and intersex in this Bill, parliament would be effectively saying that discrimination on these grounds is no longer acceptable, and that all LGBTI people should be protected from discrimination in all areas of public life. Exceptions from this principle, if they are to be introduced, must therefore have a clear rationale and must be adopted only where it furthers the public interest.

The argument for providing exceptions to religious organisations from obligations under anti-discrimination law is based on the separation of church and state, and respect for religious freedoms for people of all faiths. That is, religious exceptions are intended to allow the free celebration of religious beliefs, even if these beliefs include discrimination against other groups that would not otherwise be acceptable.

This argument potentially has some merit in terms of public policy. Religion is an intensely personal matter, and something which individuals and groups should be allowed to pursue however they so choose. This would apply to all matters within that religion which have no impact on the rest of society – such as determining who may join that religion, who may be a minister within that religion, and how the religion is celebrated.

As a result, philosophically, this approach would allow anything which occurs entirely within that religion to be free from anti-discrimination obligations – so, for example, the religious exception would allow religions to discriminate when determining who to employ as ministers, who is admitted as a member of the religious community, who is provided with a funeral, even who is married within that religion (although obviously not who can marry through a civil ceremony).

As a consequence, if religions wanted to discriminate against any group in any of these areas (for example, by excluding LGBTI people) then that right would be allowed through a religious exception in these narrow or confined circumstances. [Of course, it should be noted at this point that state and territory parliaments have in fact legislated to restrict this right – so that, while religions can discriminate on sex, relationship status and LGBTI grounds, they are not allowed to discriminate on race. But that inconsistency is an argument for another day.]

The problem comes when religious organisations seek to broaden that exception to cover a wide range of scenarios which are not primarily based on the celebration of that religion. So, for example, some religions seek to use the religious exception to cover anything that is done in connection with a school where it is run by a religious organisation. They argue that they should be able to discriminate in terms of what may be taught within that school, who may be employed (including not employing LGBTI staff) and even being able to directly discriminate against LGBTI students.

This is an inappropriate extension of the principle of respecting religious freedom. The main function of a school is to provide education. This is a service or transaction which occurs primarily in the ‘public sphere’, which is why it is subject to many levels of government regulation, in terms of teacher qualifications, starting and finishing ages, and agreed state and territory (and soon to be federal) curricula. Even home-schooling by a parent is strictly regulated by the state because the provision of education services is in and of itself a ‘public good’.

Just because a school is run by a religious organisation, does not automatically mean that school education suddenly becomes primarily concerned with ‘celebrating religious freedom’ and thereby removed from the public sphere. The day-to-day provision of classes, by teachers to students, is not in its very nature or essence a religious sacrament. Even where there is direct religious instruction offered by a religious-run school, it is usually only a very small component of their curriculum, the vast majority of which is the same no matter who is offering it, religious or non-religious.

As a result, I submit that providing education services is not at its core about ‘celebrating religious freedom’ but, rather mundanely, is actually mostly just about providing education services. The service provision within those schools, and the employment contracts which they enter into, are not fundamentally religious in nature, meaning that the state has a legitimate interest in regulating both areas. Consequently, it is not an inappropriate restriction of fundamental religious freedom to rule that a religious school cannot discriminate against LGBTI teachers, and cannot exclude LGBTI students.

In short, the rationale of respecting religious freedom is not sufficient to allow a religious-run school to be granted an exception from lawful obligations with which it would otherwise have to comply, including anti-discrimination obligations. The proposition put forward by religious organisations, to exclude religious-run schools from anti-discrimination law, does not have sufficient weight to pass the public interest test.

I am aware that I have chosen what is perhaps the most hotly-contested area of service-delivery to make my case. The basic argument is even clearer if we examine other services which may be provided by a religious-run organisation. Take, for example, the case of a ‘for-profit’ business, which is purchased by a religious organisation to make money to divert back into its religious activities. In this example, it doesn’t actually matter what the business makes, sells or provides, just that the process involved is not religious, and that the product or service is not religious.

Philosophically, there is no justification to allow the for-profit business to discriminate against employees on the basis of their LGBTI status because the business at its core is not religious – and this applies irrespective of the fact it is owned by a religious organisation. Further, people would be outraged, quite legitimately, if the business was allowed to discriminate in its service-provision (for example, by not serving certain people because of sexual orientation, gender identity or intersex, or even sex or relationship status) simply because it was owned by the religion involved.

The same arguments can in fact be made with respect to all employment contracts and service-provision which is not inherently about religious celebration. This would include healthcare services, education services, other community services, and employment as anything other than religious ministers or religious office-holders. In each of these cases, the service provision or employment contract is part of the public sphere and the fact that it merely involves a religious organisation is not enough to justify the transaction being excluded from the operation of the law.

There is another popular argument why religious-run schools, and other religious-run services, should not be provided with exceptions from anti-discrimination obligations. This is the fact that nearly all of these services are in receipt of public funding, and often significant sums. As a matter of fairness, everyday taxpayers – including, it must be highlighted, LGBTI taxpayers – should not be subsidising the religious freedoms of others, especially the so-called religious ‘freedom’ to not hire a gay doctor in a religious hospital, to fire a lesbian teacher, or to expel a transgender student from a high school. If religious organisations want to exercise these ‘rights’, then they should not be using public funding to do so.

While this argument is morally attractive, I do not think it goes far enough in practice. That is, even if a religious-run high school received no public funding, the fact that it is a high school, which is primarily concerned with providing education services and is firmly in the ‘public sphere’, is sufficient to attract government intervention, including the requirement to comply with anti-discrimination legislation.

After all, an LGBTI student who might be discriminated against by the school should, philosophically, have the same right to be treated fairly irrespective of the funding breakdown for that particular school. The discrimination is no less egregious, and the homophobia no more acceptable, where no money comes from public funding, rather than if 10, 40 or even 70 % of the school’s funding is provided by the government. It genuinely doesn’t matter who funds the discrimination against that student, only that the student has a legitimate public interest in being protected from it.

Which brings me to the much more ‘personal’ argument for why exceptions for religious organisations should be narrow in scope. I mentioned earlier that, like most LGBTI Australians, I have been subjected to numerous instances of homophobic discrimination and harassment over the course of my life (I am now 34 years old). Well, I experienced the vast, vast majority of that prejudice during my time as a boarding student at a religious school in Queensland in the early to mid-1990s.

I have chosen not to include the name of the school here because I don’t think it actually matters – only the instances of homophobic discrimination which I experienced matter for the purposes of this inquiry. And, sadly, I don’t think what I experienced sets me apart from what many other students have experienced over the years, at many different schools.

During my time at his particular school, being gay was either not mentioned at all, or was mentioned in a negative context. This tyranny of silence extended to sex education, which, over the course of five years, made not one mention of same-sex attraction, or even of anal intercourse.

Imagine that, at the peak of the HIV/AIDS epidemic, while it was still very much a matter of life and death (before protease inhibitors and combination therapies), actively ignoring a major risk factor of HIV transmission simply because it didn’t fit within the religious philosophy of the school. That is not a celebration of religious freedom; that is criminal negligence.

Homophobic bullying was also common – including regular taunts of ‘faggot’, ‘poofter’, graffiti-ing of those words on books and bags, physical confrontations such as pushing and shoving – and was never actively discouraged by the school. In fact, at one end of year boarding house awards ceremony, I was given the ‘big fat poof’ award, which I was expected to get up and accept in front of everyone, including in the presence of school authorities, and to take in good humour (but, of course, which caused great personal anguish and distress).

An even worse example: in year 11, I was twice held down by a large group of students and had my chest hair shaved off. This was done because I was academic, non-sporting, basically an outsider who was not interested in girls – and, I suspect, because some of the students had correctly assumed I was gay (based on the award described above, some obviously had). The school was aware of both of these assaults and yet, within a few days of the second attack, appointed one the boys responsible school captain, and another as boarding house captain.

But the worst example of homophobic bullying at the school came during a speech by a pastor. He talked about a student at a former parish, who had struggled with his ‘identity’ for some time, and how it did not fit within god’s plan. Ultimately, he said, the student had committed suicide. The pastor made it clear that this was not the worst thing which could have happened (the former student was now at ‘peace’ and no longer struggling).

This pastor was clever – he did not use the exact words, but through his intimations he made it clear that killing yourself could be a better option than growing up and adopting a ‘homosexual lifestyle’. To be honest, I am not even sure that the heterosexual students who were present would have known the full import of what was being said – but the LGBTI students certainly would have, and they were the real ‘target’ of his hate speech.

And that is the fundamental nature of homophobic (and bi-phobic, trans-phobic and anti-intersex) discrimination. It can be insidious, and subtly but harmfully pervade everyday life. At a religious school like mine, these instances do not happen in isolation either – they are allowed to happen, cultivated and even nurtured, because the school adopts an active policy of not tolerating homosexuality or bisexuality (I am not sure they would have even understood transgender or intersex – if they did, I am sure they would have been actively against those too – but through their silence they would have seriously harmed any transgender or intersex student there as well).

Of course, I am not saying that my experience of discrimination at school is unique. There are thousands, probably tens or perhaps even hundreds of thousands, of other people with horror stories of their own from their school days, and their accounts relate to both government and religious schools. You just have to ask your LGBTI family members and friends about what their experiences were like to begin to understand.

But, in doing so, always remember that these stories are just from the adults who have survived their ordeals – sadly, some LGBTI students do not survive, and instead take their own lives along the way. Sexual orientation, gender identity and intersex-related youth suicide in Australia remains disproportionately high, and it is fair to point the finger at school-based silence, exclusion and prejudice as one of the key factors involved.

Unfortunately, the evidence is clear that discrimination against LGBTI students is still occurring in our schools today. As indicated earlier, the 2010 Writing Themselves In 3 report found that 60% of same-sex attracted and gender questioning young people had experienced some form of physical or verbal abuse. More pertinently here, the same report found that 80% of all harassment, discrimination and abuse actually happened in school settings.

This is a major national scandal. Anti-LGBTI prejudice in schools is something which all levels of government should address, in all states and territories, and in all types of school, government, non-government, religious and non-religious. There is indeed some work which is being done in different jurisdictions, such as the NSW Proud Schools initiative, and the efforts of Daniel Witthaus through his ‘Beyond That’s So Gay’ projects (www.thatssogay.com.au). But this work, without the support of every government and every school system, will never reach each and every student who needs support and protection.

More importantly, any campaign to address prejudice based on sexual orientation, gender identity and intersex is fatally undermined if we provide religious schools with exceptions from anti-discrimination obligations. We cannot in good conscience say that we support the rights of LGBTI students if, at the same time, we allow schools which are run by religious organisations to continue to actively discriminate against or marginalise students because of their sexual orientation, gender identity or intersex.

To apply this to my own experiences, providing that school with an exception under anti-discrimination legislation would mean that everything they did (with the exception of the chest shaving incidents, because, after all, assault is still assault) would have been legally protected. Not including homosexuality in sex education would be acceptable because they would claim they have a religious objection to teaching about ‘sinful’ activities.

Allowing students to denigrate other students because of their apparent homosexuality would be fine because the abusers would simply be following the teachings of their religion. And a pastor implying that killing yourself rather than lead a ‘gay lifestyle’ would be protected because they would argue that their religion included proclamations against the ‘abomination’ of homosexuality.

This situation – allowing religious schools to hide behind religious exceptions to commit acts which essentially amount to child abuse – is no longer acceptable in 2013 (if it ever was).

Thus, for both philosophical and intensely personal reasons, I submit that if the Human Rights and Anti-Discrimination Bill 2012 is to include exceptions for religious organisations, these exceptions should only apply to religious appointments or celebrations.

Recommendation 5: Exceptions from anti-discrimination requirements should only be provided to religious organisations where it relates to religious appointments or celebrations (for example, appointment of ministers of religion, admission to membership of the religion or celebrating sacraments within the religion).

This means that, in practice, these exceptions should not apply to any other area of service-delivery where it is provided by a religious organisation, including service delivery in schools and education, healthcare, aged care and other community services.

Of course, I am realistic enough to know that campaigning by religious organisations to maintain their ‘religious freedom’ (or, in other words, to retain their right to exercise prejudice on the basis of sexual orientation, gender identity and intersex) will be successful, and that, shamefully, religious schools will continue to be able to discriminate against and marginalise LGBTI people for a long time to come.

In this case, I would submit that, at a minimum, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which remove the ability of religious organisations from discriminating in aged care service delivery should be retained.

This is a positive move by the federal government, and complements their work in releasing the National LGBTI Ageing and Aged Care Strategy on 20 December 2012. The removal of the exception from this area also recognises the very personal nature of aged care services, and the fact that LGBTI people, and their families and carers, should not be discriminated against in accessing these services.

Recommendation 6: Religious organisations should not be provided with exceptions in terms of service-delivery, including service delivery in schools and education, healthcare, aged care and other community services.

Recommendation 7: If Recommendation 6 is not agreed, the existing provisions of the Human Rights and Anti-Discrimination Bill 2012 which preclude the application of exceptions with respect to aged care service delivery by religious organisations should be retained.

The same arguments which dictate that religious organisations should not be able to discriminate in terms of service delivery, also mean that the religious exception should not apply to employment. After all, employment as anything other than a minister of religion (or other internal religious appointments), is a contract or transaction undertaken in the ‘public sphere’, and is not something which is so fundamental to the ‘celebration of religious freedom’ that it should be excluded from lawful obligations not to discriminate.

In practical terms, there is nothing fundamentally religious about the role of a doctor in a public hospital, meaning a religious hospital should not be able to sack someone from this role simply for being gay. Nor is there anything inherently religious about teaching maths in a secondary school, hence a lesbian teacher should not be able to be dismissed on that basis. And an employee in an aged care facility is there to provide services to the elderly – provided they do their job well, it is irrelevant that the employee may be transgender or intersex.

Recommendation 8: Religious organisations should not be provided with exceptions in terms of employment, in any area outside appointment of ministers of religion or other appointments which are essentially religious in nature.

Once again, I am realistic enough to know that it is highly likely at least some of the exceptions which are currently provided to religious organisations – in either or both service delivery and employment – will be retained when the Human Rights and Anti-Discrimination Bill 2012 is eventually passed.

In this case, I submit that religious organisations should be required to actively disclose any and all situations where they intend to use their ‘religious freedoms’ in ways which discriminate on the basis of sexual orientation, gender identity and intersex. This disclosure should be included in positions descriptions and part of job advertisements, should be included in the organisation’s websites (including at individual school or healthcare service level), and in brochures advertising the services which they provide.

This is a minimum level of public accountability and transparency, and is not a significant regulatory burden if we are allowing an organisation to evade what are otherwise lawful obligations. It will also mean that everyone is clear on the situations in which a religious organisation intends to exercise its prejudice against LGBTI people.

For example, a gay teacher would be able to take into consideration the fact that the school could reject him for no other reason than his sexuality. Parents of a lesbian daughter would be able to choose an alternative and more inclusive environment for their child. And citizens who do not support homophobia, bi-phobia, trans-phobia and anti-intersex discrimination will be able to boycott discriminatory services if they so desire.

Obviously, this is not an ideal situation – and clearly it is far removed from my preferred model. But if we are to allow religious organisations the ‘right’ to be excepted from their obligations under anti-discrimination legislation, at the very least the potential victims of this discrimination equally have the right to know and be forewarned.

Recommendation 9: If either or both recommendations 6 or 8 are not accepted, or if recommendation 7 is accepted, then wherever religious organisations are provided with exceptions with respect to either service delivery or employment, they must publish a statement outlining their intention to discriminate in position descriptions and job advertisements, on their website and in any brochures or advertisements of their service.

There is one area which the Bill has essentially ignored – despite reproducing the existing ban on racial vilification, the Human Rights and Anti-Discrimination Bill 2012 does not extend these protections to the grounds of sexual orientation, gender identity or intersex.

This is a significant shortcoming in the exposure draft legislation. As outlined earlier, the majority of LGBTI Australians have experienced homophobic, bi-phobic, trans-phobic and anti-intersex abuse, violence or harassment.

The level of this abuse – and its corollary, the legitimate fear of it – means that I am not at all surprised by the findings of the Private Lives survey, which showed that 67% of participants’ fear of prejudice or discrimination caused them, at least sometimes, to modify their daily activities in particular environments. This same survey revealed that 90% of participants had at some time avoided expressions of public affections and disclosure of their sexual orientation or gender identity.

My fiancé Steve and I have made the conscious decision to ignore the abuse which we might receive and behave in exactly the way we choose – including kissing, holding hands and expressing our affection in public. This is a right which every couple should have. As a result of merely exercising our ‘rights’, we have been yelled at, with ‘faggot’ an all-too-common word in the bigot’s vocabulary. We are also aware that in a couple of situations things have had the potential to turn violent, with an unspoken level of threat present. And we have had nails put through all four tyres on our car, we suspect simply because we were the neighbours of someone who disagreed with our sexual orientation, and our relationship.

Of course, others do not have the ability to make a conscious decision – they may be more easily identifiable as LGBTI simply because of how they appear, or certain sex or gender characteristics which they may have. This means they are exposed to the risk of violence, abuse or harassment irrespective of how they behave, solely for having the temerity of being in a public space.

It shouldn’t be this way. LGBTI people should not be forced to accept a threat of verbal and sometimes physical violence simply for being themselves in a public space. Commonwealth law should embrace the approach already adopted by some states and territories and prohibit vilification on the basis of sexual orientation, gender identity and intersex.

This could be based on anti-vilification measures contained in the NSW Anti-Discrimination Act 1977, which outlaws public acts which “[i]ncite hatred towards, serious contempt for, or ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

Such anti-vilification measures should also be adopted because there is no intellectual distinction between vilification on the basis of race, and vilification on the basis of sexual orientation, gender identity and intersex. Both are abhorrent, and both should be banned – as such both should be included in the Human Rights and Anti-Discrimination Bill 2012.

Recommendation 10: The Bill should expand anti-vilification protections to cover sexual orientation, gender identity and intersex.

The final recommendation of this submission relates back to the justification for the Commonwealth legislating to protect LGBTI Australians in the first place: and that is, to address the significant problems of homophobia, bi-phobia, trans-phobia and anti-intersex discrimination which exist across our society.

If that is our goal, then simply providing a legal remedy for some individuals to take action against the individual or organisation that has directly discriminated against them will not be sufficient to achieve it. That is why the existing Commonwealth Acts which have prohibited discrimination on the basis of race, sex, disability and age, have also created specific commissioners within the Australian Human Rights Commission to take primary responsibility for these issues (namely the Race, Aboriginal and Torres Strait Islander, Sex, Disability and Age Commissioners).

These Commissioners, in addition to overseeing the disputes which arise under their respective portfolio, can take on a wider role to redress discrimination more broadly across society. The appointment of a specific commissioner, together with proper resourcing, is also a powerful statement of the significance which the Government places on combating discrimination in a particular area. Conversely, not appointing a commissioner, and instead subsuming it within an existing, completely unrelated portfolio, would demonstrate that the Government does not believe these issues warrant any particular attention.

For all of these reasons, I believe that the Bill should provide for a dedicated or stand-alone Sexual Orientation and Gender Identity Commissioner. This Commissioner would not only assist with implementation of the range of new attributes under Commonwealth legislation, but would also be able to take an active role in fighting the homophobia which I, my fiancé, and all of our LGBTI family members and friends know all-too-well.

Recommendation 11: The Bill should provide for the appointment of a dedicated Sexual Orientation and Gender Identity Commissioner.

alastairlawrie

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

Tag Archives: sexual orientation