Tag Archives: trans birth certificates

An LGBTIQ Advocate’s Lament on IDAHOBIT 2024

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Today is the International Day Against LGBTIQA+ Discrimination.

May 17 marks the day in 1990 homosexuality was removed from the World Health Organisation Classification of Diseases, with IDAHOBIT now an annual event drawing attention to the denial of fundamental human rights of lesbian, gay, bisexual, transgender, intersex, queer and asexual people around the world, including Australia.

Ordinarily, I would use IDAHOBIT to optimistically highlight issues of anti-LGBTIQ discrimination that can and must be addressed by Commonwealth, State and Territory Governments.

But I must admit I’m running as low on optimism at the moment as I am energy. On IDAHOBIT 2024, I just feel tired.

I’m tired of leaders who promise to protect LGBTQ students in religious schools against discrimination, but then fail to follow through on their commitments.

In the past, this statement applied to former Prime Minister Scott Morrison, who promised to remove the exceptions in the Commonwealth Sex Discrimination Act 1984 that allow religious schools to mistreat students because of their sexual orientation or gender identity in October 2018 – before spending the following three-and-a-half years running away from that commitment.

Now it applies to Prime Minister Anthony Albanese, who promised to protect both LGBTQ students and teachers ahead of the May 2022 federal election but, having received an Australian Law Reform Commission report outlining exactly how to do this, now refuses to introduce legislation to make this a reality without the support of Opposition Leader Peter Dutton.

Which is both an entirely unnecessary requirement – because the Parliamentary numbers exist to pass these reforms without the Liberal and National Parties – and will almost inevitably lead to an outcome which doesn’t actually end this anti-LGBTQ discrimination, either because the Coalition won’t agree to any changes, or any changes that are agreed simply allow this mistreatment to continue in other ways.

I’m tired of states that have allowed their own anti-discrimination laws to atrophy, through decades of neglect, such that they do not provide adequate protection against discrimination to the LGBTIQ community.

I am of course thinking of the successive governments in NSW who failed to update the Anti-Discrimination Act 1977, with the consequence that, in 2024, it still does not protect bisexual, non-binary or intersex people. Or LGBTQ students or teachers. And plenty of others too.

At least the current Minns Labor Government has referred this legislation to the NSW Law Reform Commission for comprehensive review. Although it would be even better if, in the interim, they supported the Equality Legislation Amendment (LGBTIQA+) Bill 2023, currently being considered by a parliamentary committee, which could address many of these shortcomings right now.

I’m even more thinking of the WA Labor Government who, despite promising to modernise the Equal Opportunity Act 1984 after their own Law Reform Commission inquiry process, have failed to use their parliamentary majorities in both houses to do anything about it, squandering what might be a once-in-a-lifetime opportunity to finally bring WA anti-discrimination laws into the 21st century.

I’m tired of the absence of action on birth certificates, particularly in NSW, which remains the only place in Australia that still requires trans and gender diverse people to undergo sterilising genital surgery in order to update their identity documents. And which does not provide legislative options to recognise sex or gender markers beyond male or female either.

Although, as with anti-discrimination reform, this could be solved quickly and easily through the rapid passage of the Equality Bill’s amendments to the Births, Deaths and Marriages Registration Act 1995.

I’m tired of the lack of Medicare funding for gender-affirming healthcare, too. While not all trans and gender diverse people seek access to such services, including but not limited to surgery, many do – but the significant out-of-pocket costs involved place them out-of-reach for far-too-many trans Australians.

These are vital, in many instances literally life-saving, healthcare services. They are the opposite of ‘elective’, and must be properly, publicly, funded, to ensure all trans and gender diverse people who want to can access them.

I’m tired of the glacial pace of change to protect children born with variations of sex characteristics (aka intersex kids) from non-consenting surgeries and other harmful medical interventions.

It’s been more than a decade since the Commonwealth Senate first investigated these gross violations of human rights – the worst violations against any part of the Australian LGBTIQ community – and yet only one jurisdiction has passed any kind of law to limit them (the ACT, which legislated reforms in 2023, although I understand Victoria is also moving, slowly, toward its own scheme).

Intersex people deserve to control what happens to their bodies.

I’m tired of right-wing, and far right, politicians at all levels using the LGBTIQ community as convenient punching bags for their own self-promotional purposes. The latest notorious example being Cumberland City Councillor Steve Christou, with his thankfully short-lived ban on books depicting same-sex parents from council libraries. 

But, really, we could be talking about any number of people who use anti-LGBTIQ platforms to seek, or retain, public office, from Mark Latham to Katherine Deves, and Alex Antic to Claire Chandler.

I’m tired of the far right extremist threat against LGBTIQ people not being taken seriously by Government, and especially by the Commonwealth Government.

In the wake of the downright disturbing sight of neo-Nazis turning up to an anti-trans rally on the steps of Victorian Parliament in March 2023, the Albanese Government passed urgent legislation banning Nazi symbols, and salutes, but so far have still not introduced amendments to prohibit anti-LGBTIQ vilification under federal law.

Nor has there been clear Commonwealth condemnation of the wave of threats of violence and intimidation against Drag Story Times at community libraries around the country.

I’m tired of politicians who turn up to march with us in events like the Sydney Gay & Lesbian Mardi Gras parade, but don’t turn up to vote for us on the floors of our parliaments.

And who post short statements supporting LGBTIQ people on social media on days like today, but won’t say anything when it really matters, when our community is under attack.

I’m tired of some people in the LGBTIQ community who fought for the right to marry for themselves, but then turned away from the ongoing battles for the rights of others within our own community, including trans and gender diverse, and intersex, people.

And especially of fringe groups like the LGB Alliance who actively seek to deny human rights to trans and gender diverse people, employing the same arguments, and sometimes aligned with the same groups, that were used to deny their own.

And I’m tired of the amount of time, energy and emotional resources that we must consistently spend defending existing rights from baseless attack, simply stopping the situation from getting worse, rather than making progress on the many, many issues where change is still desperately needed.

I acknowledge that this list is at least partly the product of my own choice to be an advocate for LGBTIQ equality, both professionally and personally.

A choice that means, to some extent, nearly every day for me is a day standing up against LGBTIQ discrimination.

And so on this International Day Against LGBTIQA+ Discrimination I’m choosing to do something else.

I’m logging off, and spending the day with the man who I love, doing many of the simple but beautiful things we enjoy together.

In other words, we’re making sure on this IDAHOBIT we’re living the gayest, and most fabulous, lives possible.

The struggle for LGBTIQ equality will continue tomorrow. And many, many tomorrows after that.

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Decoding Life, Freedoms and Governance

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On April 16 2024, I was invited to give the keynote address to launch Issue 47(1) of the UNSW Law Journal.

I was asked to talk about the Issue’s theme – ‘Decoding Life, Freedoms and Governance’ – with reference to at least some of the Issue’s articles (which are open-source, and can be found here), as well as my background as a long-term LGBTIQ advocate and professional experience in public policy.

The following is what I came up with (the two sections in square brackets were omitted on the night to keep to time, but are included here for completeness). Thanks for reading, I hope you find it interesting. 

‘Decoding Life, Freedoms and Governance’

Thank you for that generous introduction. And of course for the invitation to speak here tonight.

Thank you also for the broad theme of Issue 47(1) to address in my remarks – ‘Decoding Life, Freedoms and Governance’ – which took me several days to ‘decode’.

I must confess I don’t feel particularly qualified to talk in detail on the topic of ‘decoding life’ – which is something most people do in consultation with their therapist.

I do, however, have plenty to say on the twin, and intertwining, topics of ‘decoding freedoms’ and ‘decoding governance’, at least partly based on my lived experience.

That’s because, as a 45-year-old gay man, it has been impossible to avoid thinking about the meaning of freedom – of what I have been free to do, or not do, or protected from, or not, at different stages of my life. And what others, including religious organisations, have been legally free to do to me.

Or to deny the role of governance, and governments – state and federal – in determining the extent of those ‘freedoms’, far-too-often without consultation with or even consideration of those most affected by their decisions.

Indeed, some of the key events in my life overlap with milestones in the history of LGBTIQ rights in Australia.

I was born in July 1978, just weeks after NSW Police arrested 53 people for participating in the first Sydney Gay Mardi Gras parade – an indication of how unwelcoming both the law, and its enforcement, were for LGBTIQ people here.

Although I grew up in rural Joh Bjelke-Petersen-era Queensland, which was undoubtedly worse.

Queensland did not decriminalise male homosexuality between adults until January 1991 – but even then it introduced a differing age of consent for anal intercourse (18, compared to 16 for other sexual acts), a discrepancy that was not abolished until 2016, and with charges and convictions arising because of this inequality still not included in their historical homosexual conviction expungement scheme today.

January 1991 was also personally significant for a couple of reasons. Just one week after decriminalisation, I found myself travelling 800 kilometres from the family farm to a religious boarding school in Brisbane. Then, on my first day there, I found I was same-gender attracted too.

Audience members will be unsurprised to learn religious schools were lawfully permitted to discriminate against LGBTQ students (and teachers) in Queensland at that time. Loopholes my school took full advantage of over the following five years.

While I will spare you the details tonight, it would be an understatement to describe growing up gay at a religious boarding school which enjoyed special privileges to be prejudiced, as horrific. [You can read more about my experiences, here].

Fast forward to 2008, and to another coincidence. I was employed as a ministerial adviser to the Rudd Labor Government. At the same time as I met, and began my first de facto relationship with, the man who is still my partner today, I was provided internal on the details of Commonwealth same-gender de facto relationship recognition.

Some younger members of the crowd may not be aware this recognition did not exist before 1 July 2009.

Then, in January 2010, my partner Steve and I got engaged – meaning I would spend the remainder of my time working for a Government which did not support the legal equality of my own relationship.

Despite departing Canberra in mid-2012, I continued to advocate for the introduction of Commonwealth anti-discrimination protections for LGBTIQ people, something that was finally achieved in June 2013 – just 10 years ago, but almost four decades after race discrimination was prohibited federally, and more than three decades after homosexual discrimination protections were introduced in NSW (something we will return to later).

The subsequent four years were predictably dominated by the subject of marriage equality – not only campaigning for it to be passed, but also debating the manner of its passage, from conscience votes through to the push for the ALP to hold a binding vote.

And from successful LGBTIQ community efforts to stop the Turnbull Coalition Government’s plebiscite, to failed attempts to prevent their postal survey – in another coincidence, I started at the Public Interest Advocacy Centre just a couple of months before we helped one of the unsuccessful High Court challenges to block what may have technically been a statistical survey but was also an anti-democratic anomaly.

I note this challenge fell just prior to the relevant time period for the article ‘How does the High Court interpret the Constitution? A Qualitative Analysis between 2019-21’ – it would have been interesting to see how Tan, Paige, Hrambanis and Green characterised that Wilkie decision. 

In any event, thank you for indulging me in sharing a little of my back-story. Which I think reinforces that to be a gay man – or any member of the LGBTIQ community – in the final two decades of the 20thcentury, and the first few of the 21st, is to have been engaged in a constant state of contestation of our legal rights.

Our lives have been made inherently political, with participation in the political process rendered essential – even if ‘the State’ has frequently been our oppressor, or at least acted on the oppressor’s side.

That background also helps to explain why I am an LGBTIQ advocate today.

Why I chose ‘sexuality-related anti-discrimination law in practice’ as the topic of my law honours paper at ANU.

Why I’ve spent much of the past two decades volunteering for a range of LGBTIQ community organisations, including both the Victorian, and NSW, Gay & Lesbian Rights Lobbies.

And why I have ended up at PIAC, where over the past seven years I have been fortunate enough to work not just on marriage equality, but also on advocacy against the Morrison Government’s Religious Discrimination Bills, which presented a grave threat to the rights of LGBTQ people (as well as women, people with disability and even people of minority faiths).

Above all, I’ve focused on efforts to secure anti-discrimination protections for LGBTQ students and teachers in religious schools, under both state and federal law. Which is obviously a full-circle moment given where I started!

I intend to use the remainder of this speech to talk about what LGBTIQ rights look like in NSW today, across four key issues: conversion practices; birth certificates; medical interventions on intersex children; and anti-discrimination protections.

Now, had I given this address a month ago, I would have been able to make the pithy observation that we live in the worst jurisdiction in Australia for LGBTIQ laws.

Instead, following passage of the Conversion Practices Ban Act in late March, we’ve moved all the way up to equal worst, with Western Australia (actually, that’s perhaps uncharitable – if we’re being generous, we might even be able to say we are now second-worst… just).

From an LGBTIQ advocate’s perspective, this legislation is both welcome and long overdue.

It will legally prohibit conversion practices, defined in section 3 as:

‘a practice, treatment or sustained effort that is (a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity.’

This is needed because, as described in the opening article in issue 47(1) – Martin Clark and Brendan Gogarty’s excellent ‘Searching the Reins and Hearts: Conversion Practices Reforms in Australia’: 

Quote

‘[S]cientific and clinical evidence has consistently shown that there is no evidence that conversion practices are ‘effective’ in their capacity to effect a change or suppression of sexual orientation or gender identity. There is also consistent evidence that conversion practices carry clear risks of harmful effects on those subjected to them, including physical and psychological harms, such as increased suicidality, self-harm, post-traumatic stress disorders, anxiety and depression, feelings of alienation, loneliness and exclusion, sexual dysfunction, substance abuse, internalised homophobia and feelings of failure, and reluctance to seek medical treatment.’

Endquote

Disappointingly to Clark and Gogarty, who argue against a carceral approach, the new Act implements both a criminal offence, and civil complaints scheme, for conversion practices.

Although I must respectfully disagree with them – given the seriousness of the harms they outline, I would suggest criminal penalties for the worst examples are appropriate.

Either way, the passage of this law is a testament to the advocacy of conversion practices survivors like Anthony Venn-Brown, Chris Csabs and Nathan Despott, over many decades.

But I would not be honouring their work without also highlighting their primary criticism of the law as passed – that, unlike the ‘best practice’ scheme in Victoria, the NSW law does not provide a formal mechanism for third-party complaints to Anti-Discrimination NSW.

As it stands, the only complaints that can be made are from survivors directly, or via representative complaints with the consent of each of those survivors.

This framework not only reinforces one of the limitations of anti-discrimination law more broadly – that the onus for seeking redress falls on the people who have been mistreated.

It ignores the particular characteristics of conversion practices, where the people undergoing them appear to do so ‘voluntarily’ (despite what, as Martin and Gogarty note, is the ‘impossibility of genuine consent’ in these circumstances), and are therefore unlikely to bring, or consent to, complaints until after they have extricated themselves from them. If they first survive them.

The lack of third-party complaints is a major gap in this scheme that must be rectified.

The Act also includes a range of ‘carve-outs’, providing that activities like ‘clinically appropriate’ healthcare, ‘stating what relevant religious teachings are or what a religion says about a specific topic’, and ‘parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children’, do not constitute conversion practices.

Despite this, a number of conservative religious organisations campaigned against the law in its totality, alleging it constituted an attack on ‘religious freedom’.

I must, perhaps a little less respectfully this time, disagree with them too. There is no philosophical justification for the right to inflict serious psychological harm, on children and young people, in the (misused) name of religious freedom.

Even in the case of adults – where there is at least a possible argument for the freedom to engage in practices which may result in self-harm – I would submit there is a clear justification for government regulation.

This is because of what Clark and Gogarty describe as the role played by ‘conversion ideology’ as a precursor to ‘conversion practices’:

Quote

‘Survivor-advocates have consistently contended that ‘conversion ideology’ – the worldview that it is possible and necessary for LGBTQA+ people to change their sexual orientation and gender identity, and that being LGBTQA+ is due to trauma, spiritual brokenness, and can be fixed by prayer – is central to defining and understanding conversion practices’,

because

‘the inculcation of these beliefs in congregants is important for smoothing the path for them taking part in actual conversion practices.’

Endquote

In other words, perpetrators of conversion practices first convince healthy people to believe their sexual orientation or gender identity is somehow ‘sick’ (when it is not), before offering a ‘cure’ that actually causes serious psychological harm.

The law should not protect the ‘freedom’ to engage in this abuse.

Before I conclude on this subject, I feel compelled to express my condemnation of the role played by the Liberal/National Coalition during parliamentary consideration of this law.

And especially of their vote in favour of minor-party amendments to remove ‘gender identity’ from any protection under the Conversion Practices Ban Act.

In other words, the NSW Opposition voted for the continued legality of ‘practices, treatments or sustained efforts’ to stop trans people, and especially trans young people, from being trans.

This was a shameful act, and one I would strongly urge them to reconsider in relation to future LGBTIQ law reform – including on the next topic we will turn to.

That is birth certificate legislation, and in particular, the regulation of access by trans and gender diverse people to identity documents reflecting who they are. Sadly, the NSW Births, Deaths and Marriages Registration Act 1995 is unequivocally the worst such law in the nation.

We are the only jurisdiction which still requires people to undergo genital surgery before being able to update their birth certificates – surgery many trans people do not wish to undertake, and of those that do, many cannot afford, because of a lack of Medicare funding.

While we are one of only two jurisdictions, alongside Western Australia, with no legislative options for sex or gender markers beyond male or female: non-binary people cannot access state-issued ID stating they are, in fact, non-binary.

These laws aren’t just an insult to the human dignity of trans and gender diverse people. The requirement for surgery, which causes sterilisation, is a denial of reproductive freedom and therefore the right to found a family.

While the inability of many trans and gender diverse people to access birth certificates reflecting who they are at all, means they are confronted by the possibility of ‘outing’ in the growing range of contemporary scenarios where ID is mandated.

Fortunately, the Equalities Legislation Amendment (LGBTIQA+) Bill 2023, introduced by the Independent Member for Sydney Alex Greenwich and currently being considered by a Parliamentary Inquiry, would address these problems, and at least bring NSW law up to the standard of Victoria and Queensland.

Although even then, and this is my personal rather than professional view, it would fall short of the ‘best practice’ approach of Tasmania, which is the only Australian state or territory to adopt a true ‘self-identification’ model for trans and gender diverse people.

Instead, the NSW law – like Victoria and Queensland – would still require a trans person, in addition to their own statutory declaration, to submit:

‘a support statement by an adult who has known the applicant for at least 12 months stating that (i) the adult believes the person is making the application in good faith, and (ii) the adult supports the person making the application…’

Given identity, including the characteristic of gender identity, is an inherently personal attribute, I do not agree the recognition of someone’s gender should be dependent on whether another person ‘supports’ it.

Looked at from another perspective, I do not concede that my sexual orientation, as a gay man, should only be acknowledged if I am able to produce a statutory declaration from another person saying they ‘support’ it.

I am who I say I am, a fact generally accepted by others. Trans and gender diverse people deserve to enjoy exactly the same respect.

Nevertheless, we (being PIAC), support the Equality Bill as a significant step forward along the long journey to LGBTIQ, and especially trans, equality. We urge both the NSW Government, and Opposition, to support it.

Turning to the third topic I flagged earlier, and in which NSW law is manifestly deficient: medical interventions on intersex children.

For audience members new to this subject, intersex people have innate sex characteristics that do not fit medical norms for female or male bodies. It is estimated somewhere up to 1.7% of children are born with these variations of sex characteristics.

Tragically, the medical system’s response to many intersex children is to perform so-called ‘normalising’ surgeries on them.

These interventions are frequently not clinically necessary for the child’s health, but instead performed for non-therapeutic or ‘psycho-social’ reasons, including to assuage the disappointment of parents who expected their child’s body to conform to societal norms, or to ‘assist’ the child to fulfil gendered stereotypes in the future.

For those curious about what that means in practice, I suggest reading the 2016 Family Court case of Re: Carla, which ruled that a family can consent to the sterilisation of their 5-year-old child without court approval, without clear medical necessity and at least partly motivated by gendered expectations, including attitudes to that young child’s potential future sexuality. It was then, and remains today, a genuinely heart-breaking decision.

These unnecessary surgeries are obviously done without the consent of the person affected by them, who should be free to agree, or not agree, to them when they have at least reached Gillick competency and understand what is involved.

In my view, medical interventions on intersex children, which are a fundamental denial of bodily autonomy, are one of the gravest human rights violations happening in Australia today – not just in relation to the LGBTIQ community, but across society.

There have been multiple public inquiries recommending these practices be ended, including the 2013 Senate ‘Inquiry into the involuntary or coerced sterilisation of intersex people in Australia’, and the Australian Human Rights Commission’s 2021 report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics.’

Sadly, however, only one Australian jurisdiction has so far passed legislation to prohibit these surgeries: the ACT. While I understand Victoria may be close to finalising its own laws.

In contrast, there is no NSW Government commitment to introducing equivalent laws here, nor was it included in Mr Greenwich’s Equality Bill.

This is a gross failure of governments, in NSW and elsewhere, to protect the rights of the most vulnerable.

It is unsurprising I had this issue front-of-mind while reading the article ‘Out-of-Home Care, Contact Orders and Infant Mental Health: Recognising a Unique Developmental Stage in Law, Policy and Practice’ by Rachel Gregory-Wilson, Elizabeth Handsley, Liesel Spencer and Toby Raeburn, including their observation that:

Quote

‘Infancy is, therefore, a special and critically important stage of human development, and infants as a class of persons require special recognition and safeguards, including under child protection law. Infants are not little children, just as children are not little adults; they need different and unique exposures in their environments to facilitate optimum physical growth and emotional development’.

Endquote

While they made this observation in a different context, I think it reasonable to apply these principles to intersex children, who deserve legislative safeguards for their bodily autonomy, and who should be allowed to grow and develop free from unnecessary medical interventions to try to change their bodies into what society expects them to be.

Let intersex kids be free from surgeries performed according to the wants of others, rather than their own needs – and only performed following their own timeframes, if they so consent.

[One final point before moving on – while the circumstances, and associated rights, of trans young people, and intersex children, are quite distinct, it is depressing to observe the intellectual inconsistency of those who oppose the rights of both.

For example, Liberal Senator Alex Antic’s Childhood Gender Transition Prohibition Bill 2023, currently before Commonwealth Parliament, seeks to ban access by trans and gender diverse young people to gender-affirming health care, even puberty blockers and even where they are Gillick competent.

While simultaneously providing a specific carve-out to allow non-consenting medical interventions to continue to be performed on intersex children.

According to Antic, there should be no gender-affirming health care for trans kids who want it and who are able to consent. But no protection for intersex kids from harmful surgeries that are not clinically necessary and where they are in no position to consent.

Trans and intersex kids lose either way].

Turning to the final topic of my speech – anti-discrimination coverage – once again NSW has the worst laws in the country. Nowhere is this more apparent than in the protections the Anti-Discrimination Act 1977 offers, or more accurately fails to offer, LGBTIQ people.

It wasn’t always this way. In fact, NSW was the first Australian jurisdiction to protect lesbians and gay men against discrimination, in late 1982. Incidentally, this was before the decriminalisation of homosexuality in mid-1984, meaning there was an 18-month period during which gay men were criminals but legally could not be denied housing.

But the lack of subsequent reform, especially over the past 28 years, has allowed this law to atrophy.

We are now the only place nation-wide which does not protect bisexual people against discrimination. And one of two, with Western Australia, that does not protect non-binary and intersex people.

The provisions allowing discrimination by religious schools are the broadest in Australia too.

Indeed, they are so broad they apply to all ‘private educational authorities’, not just religious schools. And they offer complete or ‘blanket’ privileges to discriminate – unlike all other jurisdictions, there is no test which NSW schools must satisfy before being permitted to discriminate. The Act simply does not apply to them.

These serious flaws are just some of the reasons PIAC has made comprehensive anti-discrimination law reform a priority, including through our August 2021 report ‘Leader to Laggard: The case for modernising the NSW Anti-Discrimination Act’.

We were obviously pleased NSW Labor listened to that report and made comprehensive review of the ADA an election commitment. And we have welcomed, participated in and will continue to participate in the current NSW Law Reform Commission inquiry into this broken and outdated law.

But, as people discovered at the start of the century – when the Law Reform Commission completed its last review of this legislation, with its report then gathering dust rather than being implemented – an inquiry is meaningless if nothing subsequently changes.

We will continue to advocate to the Minns Labor Government until we finally have an Anti-Discrimination Act fit for the 21st century, one offering genuine protection against discrimination for all communities, including LGBTIQ people.

Speaking of Law Reform Commission reports at risk of gathering dust, I cannot discuss anti-discrimination law reform tonight without also addressing the current situation federally.

[Before we get into those details, however, and on indulgence, I might take this opportunity to vent the frustrations of an advocate for protecting LGBTQ students in religious schools who regularly comes up against the intellectually disingenuous, and sometimes downright dishonest, arguments of those opposed to reform.

I speak of some conservative religious schools, and their representative bodies, who simultaneously claim that religious schools do not discriminate against lesbian, gay, bisexual and trans students – but that under no circumstances can their legal privileges to do so ever be repealed.

They can never satisfactorily answer why that should be the case.

Until you realise it is because these religious schools do in fact discriminate against queer kids – they just call it something else.

Which is how you end up with the anti-LGBTQ, and especially anti-trans, student enrolment contract, proposed by Citipointe Christian College in Brisbane in 2022.

Or the situation in late 2023, when a Sydney Catholic school rejected a female student’s request to bring their same-gender partner to their formal (with it later becoming apparent this was policy across that entire Catholic school network).

Indeed, Catholic schools seem to be experts in this special kind of hypocrisy – claiming not to discriminate, while doing exactly that – as can be seen in the 2023 Sydney Catholic Schools’ ‘Gender Dysphoria Policy’ – a 6-page guide that only ever refers to students with ‘gender dysphoria’, never once acknowledging some students are trans.

I would submit it is fundamentally discriminatory to refuse to acknowledge who a trans child is.

It is almost refreshing to witness the comparative honesty of an organisation like the Presbyterian Church of Australia, who have publicly stated gay students cannot hold leadership positions within their schools because they are unable to ‘model Christian living’.

Almost – until you remember they are unashamedly, and unrepentantly, saying they will actively mistreat young people solely because of an intrinsic attribute.

That is nothing more than bullying, pure and simple. There should be no place for it in places of learning.

Anyway, thanks again for your forbearance.]

As audience members are aware, this issue has been ongoing for several years – since late 2018, when both the then-Morrison Government, and then-Shorten Opposition, promised to protect LGBTQ students. With Labor going further in promising to protect LGBTQ teachers too.

Albanese took these commitments to the May 2022 election, with Attorney-General Mark Dreyfus referring the question of how they should be implemented to the Australian Law Reform Commission in November that year.

The ALRC handed its report to Dreyfus in December. They proposed straight-forward amendments, to the Sex Discrimination Act 1984, and Fair Work Act 2009, to reflect the following two principles:

  1. That LGBTQ young people should enjoy the freedom to learn and to grow, without fear of discrimination on the basis of who they are, and
  2. That LGBTQ teachers should be employed on the basis of their skills and experience, rather than their sexual orientation and gender identity.

We hoped the privileges for prejudice enjoyed by religious schools might finally end.

But, when the Government released the ALRC report in March, those hopes were immediately dashed – because Prime Minister Albanese indicated no legislation would even be introduced to Parliament without bipartisan support from the now-Dutton Opposition. Effectively abdicating responsibility for his own election promises to the parties he had defeated.

Remember, not only did the Coalition do nothing to implement Morrison’s 2018 promise to protect LGBTQ kids, they withdrew their own Religious Discrimination Bills from Senate consideration because of amendments to prohibit discrimination against trans students.

Just today, Shadow Attorney-General Michaelia Cash has written an opinion piece not just opposing reforms to the Sex Discrimination Act, but also backing calls by religious schools for ‘positive rights’ to discriminate under federal law, with the consequence of overriding protections for LGBTQ teachers, and even students, in states and territories that have progressive laws.

It was abundantly clear to observers when Mr Albanese announced his ‘bipartisanship’ push, and is undeniable now, there are only two possible outcomes:

  1. There is no agreement, and therefore no protection for LGBTQ students and teachers
  2. There is agreement – but any Bill supported by the Coalition will not offer genuine protection for LGBTQ students and teachers.

Either way, LGBTQ Australians lose again.

It is hard not to share the sentiments, if not the choice of language, of religious school discrimination survivor James Elliot-Watson, when he described the impasse thus:

Quote

‘MPs are paid in excess of $200,000 so everybody should do their fucking job.

And I think that’s especially true for the leader of the government and my Prime Minister.

The purpose of parliament is to enact laws that ensure the safety, integrity and protection of… Australian citizens and that’s what this is about.

It needs to protect vulnerable children from legal discrimination practices that religious institutions are allowed to engage by chang[ing] the law.

Let’s get it done.’

Endquote

If Albanese doesn’t ‘get it done’ this term, it will be no less a failure of governance, and governments, to realise the basic freedoms of LGBTIQ Australians as the failure to achieve marriage equality over many years.

Indeed, there are many similarities between these two issues.

Both were reforms supported by a large majority of the Australian community.

Both could be delivered with legislative ease, following well-established precedents (in the case of marriage equality, overseas examples; in anti-discrimination law, the successful operation of state and territory laws).

Both issues had politicians who claimed to support change, but were recalcitrant in delivering it.

Significantly, both marriage equality and anti-discrimination reform have seen Prime Ministers impose artificial barriers hindering change – in the former, an unnecessary plebiscite-cum-postal survey; in the latter, the unnecessary need for bipartisan support.

With the result that on both issues LGBTIQ Australians are made to wait far too long for positive change.

Which is the most important point. It is LGBTIQ Australians who suffer real-world harm because of political intransigence.

In marriage equality, we remember Peter ‘Bon’ Bonsall-Boone and Peter De Waal, who were together for 50 years, and, in the face of Bon’s declining health, desperately pleaded for Malcolm Turnbull to introduce marriage equality so they could finally wed.

Bon died 6 months before it was passed.

In relation to LGBTQ students, I think about the person whose story we will never get to hear – because the mistreatment they experience causes them to prematurely end their life.

I say that with confidence – because it was nearly my story.

The horrific discrimination I suffered at the hands of my religious boarding school, which I mentioned earlier, caused me to experience suicide ideation from the second term of year 8, through the final term of Year 12. And beyond.

I am, in many respects, very lucky to still be here.

But I am also full of resolve. Because that is no way for a child to learn, or to grow up.

And so I can state with equal confidence that I, and PIAC, will continue to advocate until no child has to endure the same.

As I come to the end of tonight’s speech, I’m tempted to apologise for the ‘heaviness’ of some of the subjects I’ve spoken about, including the personal impacts of anti-LGBTIQ prejudice.

It is an ‘occupational hazard’ of being an advocate, and especially one who focuses on policy and law reform, to be constantly critical, to highlight where the law is deficient, and the terrible outcomes of those shortcomings.

I do not intend to convey the impression there has been no positive law reform in my lifetime (or since that very first Mardi Gras) – not just on conversion practices, but also decriminalisation, de facto and rainbow family rights, and in many other areas.

Nor is the plight of LGBTQ people in religious schools intractable. I am reliably informed my own boarding school is now welcoming of same-gender attracted and gender diverse students, a product of anti-discrimination protections for students that have existed in Queensland for twenty years.

But I do mean to impart the understanding that the struggle for the full realisation of LGBTIQ human rights and freedoms in Australia is far from over, and that we will never reach that end-point without the concerted efforts of the community, both LGBTIQ and non-LGBTIQ alike.

I welcome those present tonight as fellow travellers on the long journey ahead.

Congratulations on Issue 47(1) of the UNSW Law Journal to Jessie Liu, your editorial team and to all of the authors published. It is truly impressive in its breadth, and depth, of scholarship.

And thank you for listening to my remarks.

[The video of this event has been published here. My speech begins at the 20-minute mark].

Photo credit: UNSW Law Journal

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NSW laws are a horror-scope for LGBTIQ people

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Right now, the NSW Government is consulting the community about whether to introduce new commemorative birth certificates, with proposed themes including ‘AFL, Olympic and Astrology Zodiac’ (yes, seriously).

At the same time, trans and gender diverse people in NSW continue to endure the most regressive birth certificate laws of any state or territory in Australia, which require people seeking to update their identity documents to first undergo genital surgery – something many do not want, and even more cannot afford.

It is offensive that I might be able to access an astrology-themed birth certificate (Leo, don’t judge) before many of my trans and gender diverse friends can obtain identity documents that simply reflect who they are.

The Births, Deaths and Marriages Registration Act is far from the only NSW law that treats LGBTIQ people as second-class citizens. There are many ways in which LGBTIQ people in this state wake up each day confronted by their own ‘horror-scope’ of discrimination and mistreatment.

For LGBTQ students at religious schools: You could be suspended or expelled today simply because of who you are. [Or, as we saw last week, you could be denied the ability to bring your partner to the school formal because they are the ‘wrong’ gender.] But there’s nothing you or anyone else can do about it.

For LGBTQ teachers at religious schools: You could lose your job today, and it has nothing to do with your ability to perform your role.

For bisexual, non-binary and intersex people: You could be discriminated against or vilified as you go about your everyday activities, but don’t bother complaining to Anti-Discrimination NSW – the Anti-Discrimination Act doesn’t protect you.

For LGBTQ people seeking to access publicly-funded disability, health, homelessness, and other community services operated by religious organisations: Closed doors could be a constant in your day – because the services you need can turn you away just for being you.

And for vulnerable young LGBTQ people: Watch out for people or groups seeking to change or suppress your sexual orientation or gender identity – even though what they offer is psychological torture, it’s still totally legal here.

Despite being the home of the Sydney Gay & Lesbian Mardi Gras, and recent host of World Pride, it’s no exaggeration to describe the state of LGBTIQ laws in this state as abysmal. Indeed, none of the above scenarios have changed since before the Sydney Olympics, leaving us with the worst legislation in Australia.

NSW is the gold medal winner in anti-LGBTIQ bigotry. Although somehow I doubt we’ll be able to get that on any ‘Olympic’ themed commemorative certificate.

Right now, there are two Bills before NSW Parliament that would remedy this situation: strengthening protections against discrimination, finally providing trans and gender diverse people with access to identity documents that reflect their gender identity, and prohibiting sexual orientation and gender identity conversion practices.

The Equality Legislation Amendment (LGBTIQA+) Bill 2023 and Conversion Practices Prohibition Bill 2023 were introduced by independent Member for Sydney Alex Greenwich in August.

They were drafted following consultation with the community, including trans and gender diverse people as well as survivors of conversion practices.

In many cases, they would simply drag NSW law up to minimum standards that have existed in other jurisdictions for years, or even decades (with LGBTQ students in religious schools protected against discrimination for upwards of twenty years in Tasmania, Queensland and the Northern Territory).

The NSW Government is currently considering whether to support them. It is imperative they do – and seize the opportunity to bring many of the state’s LGBTIQ laws into the 21st century.

Even if they do, however, the job of achieving full protection for the LGBTIQ community will not be over. Sadly, the Bills currently before Parliament do not follow the ACT’s precedent in addressing one of the most extreme human rights violations against any part of our community: the ongoing involuntary surgeries and other medical interventions performed on children born with variations of sex characteristics (intersex children).

Nevertheless, the reforms contained in Greenwich’s Bills are essential, and should be progressed. 

So, as the Minns Labor Government decides whether to support the fundamental protections these Bills offer, they should read their own horoscope for today:

You have the chance to make a tangible difference in the lives of LGBTIQ people across NSW. And it’s much more important than introducing star sign-themed birth certificates.

*****

You can call on Premier Chris Minns to support the Equality Bill and Conversion Practices Prohibition Bill by contacting him here: https://www.nsw.gov.au/nsw-government/premier-of-nsw/contact-premier

Chris Minns (centre) marching in this year’s Sydney Gay & Lesbian Mardi Gras Parade.

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LGBTIQ Law Reform Priorities for 2023

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Yes, I acknowledge it’s early April (and a lot has already happened this year, including Better Together in Adelaide, Sydney World Pride, TERF tours, neo-Nazi rallies, Christian Lives Matter riots and Mark Latham being, well, Mark Latham ie a homophobic and transphobic bigot).

But there’s still plenty of 2023 yet to come. I would therefore like to take this opportunity to set out what I think are, or should be, some of the law reform priorities for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community in Australia.

  1. Ending non-consenting surgeries and other harmful medical interventions on children born with variations of sex characteristics

The ongoing mistreatment of intersex kids, which includes egregious violations of the fundamental right to bodily autonomy, remains the worst human rights abuses against any part of the LGBTIQ community.

Thankfully, on this issue we have started 2023 with good news – on 22 March, the Australian Capital Territory Government introduced the Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2023.

Once passed, the ACT will become the first jurisdiction in Australia to prohibit many of these non-consenting surgeries and other harmful medical interventions.

This achievement obviously reflects the leadership of ACT Chief Minister Andrew Barr, and his Government. But above all, it is a tribute to the relentless advocacy of Intersex Human Rights Australia, its tireless Executive Director Morgan Carpenter, and the intersex community and movement more broadly.

However, even after this historic legislation is implemented, there will remain seven other states and territories where children born with variations of sex characteristics are not protected.

October 2023 will mark ten years since the Final Report of the Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, which first recommended such surgeries should end. At the current rate – of one jurisdiction legislating every ten years – it will take until 2093 before all intersex children are protected around the country.

That is clearly not good enough. We need the Governments of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory to follow the lead of the ACT and urgently introduce their own Bills to outlaw these abhorrent practices.

2. Reforming trans birth certificate laws in NSW, Queensland and WA

It is appalling that, in 2023, trans and gender diverse people in NSW and Queensland are still required to undergo genital surgery in order to update identity documents, including birth certificates, to reflect their gender identity. WA is almost as bad – trans people there must demonstrate they have engaged in some form of physical treatment (which may include genital surgery, top surgery and/or hormone treatment), to do the same.

As with the issue of intersex surgeries, on trans birth certificates we start 2023 with good news – in two of these three jurisdictions anyway.

The Queensland Government has introduced the Births, Deaths and Marriages Registration Bill 2022 which, once passed, will remove all requirements for genital surgery, as well as other forms of medical treatment or approval from psychologists or counsellors. I urge the Queensland Parliament to pass this vital law as quickly as possible.

The WA Government meanwhile has publicly committed to abolish their Gender Recognition Board, and remove the serious barriers which confront trans and gender diverse people who simply want identity documents to accurately reflect their identity. Hopefully, the WA reform Bill can be developed, introduced and passed before the end of this year.

Which just leaves NSW – and, assuming both the above Bills do pass, will leave NSW as the only jurisdiction in Australia which mistreats its trans and gender diverse community in this way.

While March saw a change of Government in NSW, the new Minns Labor Government has not made specific commitments to change the laws here. Their response to a question on this topic in the LGBTIQ pre-election community survey, led by ACON, only noted ‘Labor will review these provisions in consultation with the community and trans and gender diverse communities’.

There is therefore a need for significant community pressure to be applied on the NSW Government to reform trans birth certificate laws as a matter of priority – and that pressure should come not just from the trans and gender diverse community, but also from cisgender allies who support trans human rights.

For more on this subject, see: Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.

3. Banning conversion practices nation-wide

As at April 2023, only two Australian jurisdictions have prohibited sexual orientation and gender identity conversion practices generally: Victoria and the ACT.

A third, Queensland, has only done so in health settings, which means the places where conversion practices primarily occur – religious settings – are not covered.

Therefore, we need 6 of 8 Australian states and territories to either introduce, or upgrade, bans on conversion practices.

There are signs of movement in at least some of those jurisdictions:

  • The Western Australian Government promised in December 2022 that it would introduce legislation banning conversion practices (although some of the language used at the time suggested it may follow the flawed Queensland approach, rather than the more comprehensive Victorian and ACT models), and
  • The Tasmanian Government has also committed to implement the recommendations of a Tasmanian Law Reform Institute inquiry into conversion practices (although there have been some delays in the introduction of its legislation).

Meanwhile, the newly elected Labor Government in NSW sent mixed signals on conversion practices during the recent state election campaign. After first promising to ban conversion practices outright, the now-Premier Chris Minns later indicated it may not apply to religious settings, telling faith leaders that:

‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’

Advocates will need to spend considerable time explaining to Minns and his Cabinet colleagues why such a limited ban would be almost pointless in addressing the serious harms caused by conversion practices.

At this stage, I am unaware of current proposals in either South Australia or the Northern Territory to prohibit conversion practices – if you know more, please add the details in the comments section, below.

Let’s hope all six jurisdictions named (NSW, Queensland, WA, SA, Tasmania and the NT) take concrete steps this year to consign conversion practices to history (I was going to add ‘… where they belong’, but really, conversion practices have always been torture, and were never acceptable).

4. Modernising LGBTIQ anti-discrimination laws

2022 ended with two important developments in Australian LGBTIQ anti-discrimination legislation. The first saw the NT Parliament pass a major update to its Anti-Discrimination Act 1992, including covering non-binary and intersex people for the first time, and finally protecting LGBTQ teachers in religious schools against discrimination.

The second was the Commonwealth Government amending the Fair Work Act 2009 to explicitly include gender identity and intersex status as protected attributes for the purposes of adverse action and unlawful termination protections (after more than four years of campaigning, by myself and others, including Intersex Human Rights Australia and Just.Equal Australia).

Nevertheless, there remains a long way to go before the patchwork of our anti-discrimination laws finally ensure all LGBTIQ people, all around the country, can live our daily lives free from the threat of discrimination just because of who we are.

In (the remainder of) 2023, some of the main areas of activity will include:

Commonwealth

At Commonwealth level, the primary focus is obviously the Australian Law Reform Commission inquiry into religious exceptions allowing discrimination against LGBTQ students and teachers at religious schools, which is currently due to report on 21 April. Demanding that any subsequent Bill passed protects students and teachers, without allowing discrimination via alternative means, is essential.

But it is by no means sufficient. We also need to reform religious exceptions under the Sex Discrimination Act 1984more broadly, to ensure LGBTQ people accessing services, and LGBTQ workers, are not discriminated against by faith-based bodies across a range of public services, including health, housing, disability, welfare and other community services. As well as lobbying to include similar reforms to protect LGBTQ workers in the Fair Work Act(which also has incredibly broad religious exceptions), including via the Commonwealth Government’s Employment White Paper process.

New South Wales

Regular readers of this blog will be aware that the NSW Anti-Discrimination Act 1977 is the worst LGBTIQ anti-discrimination law in Australia. It fails to protect bisexual people. And non-binary people. And intersex people. It has the broadest exceptions allowing discrimination against LGBTQ students. And teachers. And the broadest religious exceptions generally. (For more background, see: What’s Wrong With the NSW Anti-Discrimination Act 1977?)

While the previous Government effectively ignored these problems, the new NSW Government has at least agreed to refer the Act to the NSW Law Reform Commission for comprehensive review. This review needs to take place as quickly as possible, as does any legislation which emerges from it, to finally drag the NSW Anti-Discrimination Act into the 21st century.

Queensland

Queensland’s Anti-Discrimination Act 1991 is already much better than NSW’s – and, by the end of 2023, it’s LGBTIQ anti-discrimination laws should move even further ahead (and approach those of Tasmania, Victoria and the ACT which are now the best in the country). That’s because the Bill updating trans birth certificate requirements, described earlier, also modernises the definition of gender identity, to protect non-binary people, and introduces a new protected attribute of sex characteristics.

Even more significantly, the Government has agreed in-principle to all of the recommendations of last year’s review of the Anti-Discrimination Act by the Queensland Human Rights Commission, and vowed to introduce a new Act by the end of this year. That Bill should finally remove the ‘Don’t Act, Don’t Tell’ regime which still applies to LGBTQ teachers in Queensland’s religious schools, and replace it with a system where teachers are judged on their ability, not their sexual orientation or gender identity.

Western Australia

Western Australia has much, much worse LGBTIQ anti-discrimination laws than Queensland – indeed, they are almost as bad as NSW’s – but they are on track to make a great leap forward this year. The WA Government has similarly accepted the recommendations of its own Law Reform Commission review of the Equal Opportunity Act 1984, including to ensure all trans and gender diverse people, as well as intersex people, are finally covered, and to modernise its approach to religious exceptions, including to protect LGBTQ students and teachers in religious schools. This legislation needs to be introduced and passed as a matter of priority – because LGBTIQ people in WA have waited for far too long already to enjoy effective anti-discrimination laws.

South Australia

The only Australian jurisdiction which does not already unequivocally protect LGBTQ students and teachers in religious schools against discrimination and which also does not have at least a process in place (or promised) that could lead to these exceptions being removed is South Australia. It’s time for the South Australian Government to take urgent steps to remedy this situation.

For comparative analysis of LGBTIQ anti-discrimination laws around the country, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

5. Protecting LGBTIQ people against vilification

The same NT laws which modernised their Anti-Discrimination Act 1992 also prohibited vilification there for the first time through the introduction of new section 20A, which provides:

‘A person must not do an act that (a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) is done because of an attribute of the other person or of some or all of the people in the group.’

Despite this positive development, there are still four Australian jurisdictions which do not prohibit anti-LGBTIQ vilification in any way: the Commonwealth, Victoria, Western Australia and South Australia.

Of these, the WA Law Reform Commission review of the Equal Opportunity Act 1984 recommended that anti-LGBTIQ vilification should be prohibited, so hopefully this gap will be addressed this year.

While the Victorian Government has a long-standing commitment to introducing anti-LGBTIQ vilification laws, a commitment which seems to have been revived following the recent TERF and neo-Nazi rally on the steps of Victorian Parliament.

Indeed, the events of the past few months, including that TERF tour and neo-Nazi demonstration, as well as the Christian Lives Matter riot in Sydney and Mark Latham’s potentially vilifying, and definitely homophobic, tweets, have reiterated the need for vilification protections nation-wide, meaning the Commonwealth and South Australia Governments must address this menace too.

For further analysis of LGBTIQ vilification laws around Australia, see: Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

6. Creating an LGBTIQA+ Commissioner at the Australian Human Rights Commission

The disturbing events of the past few months have confirmed one of the other major holes in Australia’s LGBTIQ rights framework – the absence of a dedicated LGBTIQA+ Human Rights Commissioner at the Australian Human Rights Commission (AHRC).

While there are existing Commissioners for Race, Sex, Disability, Age, Children, and Aboriginal and Torres Strait Islander Social Justice, there is no stand-alone, independent office-holder with primary responsibility for advocating on issues affecting the LGBTIQA+ community.

This gap meant there were many missed opportunities for commenting on, educating about and generally advancing the rights of LGBTIQA+ Australians when those same rights came under sustained attack.

In my view, it is simply not good enough to ask the Sex Discrimination Commissioner to take on additional responsibility for sexual orientation, gender identity and intersex human rights issues within the AHRC with whatever spare capacity they have left after addressing discrimination against women (hint: not much).

Indeed, as far as I can tell, there have been exactly zero media releases and/or news items on the Commission’s website about the awful attacks on our community over the past month (while the LGBTI section of the website has not been updated since October 2021).

Please note, this is not a criticism of the many good people who work at the Commission. It is simply an inevitable consequence of the severe structural weakness of a model where LGBTQA+ rights are only ever an add-on to someone else’s existing role.

It is beyond time for this structural weakness to be remedied, by the creation and appointment of an LGBTIQA+ Commissioner at the AHRC.

For more arguments about this topic, see: Where’s Our LGBTIQA+ Commissioner?

7. Supporting LGBTIQ refugees and people seeking asylum

This priority is both a law reform issue, and something where policies need to be improved and increased funding provided. Australia’s abhorrent refugee laws also obviously harm all people seeking asylum, rather than just LGBTIQ people. In that context, it should be stated that mandatory detention, and off-shore processing, must both be ended for all people seeking asylum.

However, there are some issues which do have a particular impact on LGBTIQ people seeking asylum, including that Australia’s off-shore processing scheme could still involve sending LGBTIQ refugees to Papua New Guinea, a country where male homosexuality remains criminalised (and from which all refugees should be repatriated to Australia).

Our processes for the intake of people seeking asylum are still not suitably tailored to deal with the needs of LGBTIQ people, and in my view we should be increasing the intake of LGBTIQ refugees from countries which are newly–criminalising same-gender sexual activity (including Uganda).

Finally, Australia needs to better support the LGBTIQ refugees and people seeking asylum who are in Australia, including by funding dedicated LGBTIQ refugee support services and the LGBTIQ refugee peak body, Forcibly Displaced People Network (FDPN).

8. Supporting the Voice to Parliament at the upcoming referendum

Even after writing just that heading, I can already hear some people respond: ‘But that isn’t an LGBTIQ issue.’

Except that all LGBTIQA+ people living in Australia are either First Nations LGBTIQA+ people, including brotherboys and sistergirls, or non-Indigenous LGBTIQA+ people living on Aboriginal land.

Meaning all of us have an interest in supporting reconciliation and, in my personal view, the best chance we have of making progress on that in 2023 is by supporting the generous invitation extended by First Nations people through the Uluru Statement from the Heart, which includes commitments to the three inter-related pillars of Voice, Treaty and Truth.

The first step in making that happen is by campaigning, and voting, for a constitutionally-enshrined Voice when it is the subject of a referendum later this year.

LGBTIQA+ Australians, as the community most-recently subjected to a national public vote on our human rights, also have an intimate understanding of what it is like to be at the centre of this type of debate, including consistent attacks from extreme-right politicians and the Murdoch press.

My sincere hope is that many non-Indigenous LGBTIQA+ Australians demonstrate solidarity with LGBTIQA+ First Nations people, and Indigenous people more broadly, by supporting the Voice as it too is attacked by the same people who attacked us. In other words, Vote Yes.

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Sydney: World Pride and Legal Prejudice

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Well, it’s official. When Sydney World Pride kicks off in less than a fortnight, it will be held in the jurisdiction with the worst LGBTIQ laws in Australia.

This incontrovertible fact is not surprising to anybody who has been paying attention. But it is still shocking to observe all of the different forms of legal prejudice which still exist in NSW. And, as always, the most vulnerable members of our community are the ones left paying the price.

This includes all those let down by the worst anti-discrimination legislation in the country.

The NSW Anti-Discrimination Act 1977 is already the only anti-discrimination law which fails to protect bisexuals against discrimination.

With legislation currently before Queensland Parliament, and a recent promise by the Western Australian Government to implement WA Law Reform Commission recommendations there, NSW will also soon be the only place which fails to protect non-binary people.

And the only place with no explicit intersex protections either.

The Anti-Discrimination Act’s exceptions which allow ‘private educational authorities’ to lawfully discriminate against LGBTQ students and teachers remain the broadest in Australia too.

Once again, the WA Government’s promised response to their Law Reform Commission, and the current Australian Law Reform Commission inquiry into the Commonwealth Sex Discrimination Act 1984, mean it is highly likely, by the end of this year, NSW will retain the only anti-discrimination law which fails to protect LGBTQ young people.

When it comes to the LGBTIQ community, the NSW Anti-Discrimination Act permits more discrimination than it prohibits.

Trans and gender diverse people in NSW are also subjected to out-dated and overly restrictive birth certificate laws.

It is currently one of only two states that still require transgender people to have genital surgery in order to access identity documents which reflect their gender identity – but the other, Queensland, has a Bill before Parliament to remove this unnecessary barrier.

A third jurisdiction, Western Australia, also requires physical treatment of some kind (such as hormone therapy) although the WA Government recently committed to reform their laws.

Unfortunately, the NSW Government has made no such promise here, effectively abandoning trans people who either cannot afford (because of the prohibitive costs involved) or do not wish to undergo surgery, as well as people with non-binary gender identities.

NSW’s laws fail the LGBTIQ community in two other areas which are no less important.

First, there is no ban on sexual orientation and gender identity conversion practices in NSW.

Victoria and the ACT have already banned these dangerous and harmful psychological practices, while Queensland has partially banned it (in health settings only). Other jurisdictions, including Tasmania and Western Australia, have promised to outlaw it. But ‘ex-gay’ and ‘ex-trans’ torture remains legally permitted in NSW today.

Second, there is no prohibition on non-consenting surgeries and other unnecessary and deferrable medical interventions on children born with variations of sex characteristics in NSW either.

These are horrific and ongoing human rights abuses, denying the fundamental right to bodily integrity of intersex infants. Just as horrific is the fact no Australian jurisdiction has, to date, ended these practices.

Thankfully the ACT Government will shortly become the first, with legislation expected to be introduced in the first half of 2023.

Once again, however, there have been no promises, and no signs of movement, on this issue from the NSW Government.

The current appalling situation in these four areas (LGBTIQ anti-discrimination laws, trans and gender diverse birth certificates, sexual orientation and gender identity conversion practices, and non-consenting surgeries and other medical interventions on children born with variations of sex characteristics) constitutes nothing less than a crisis in LGBTIQ rights in NSW.

To some extent, it is a crisis that has emerged, and worsened, only gradually over time, thanks to the inaction of successive Governments of both persuasions (especially in relation to the broken Anti-Discrimination Act).

However, with the O’Farrell/Baird/Berejiklian/Perrottet Liberal-National Government about to celebrate 12 years in office, they must clearly shoulder a significant share of the blame.

Indeed, the last LGBTIQ-specific law reform which the Coalition implemented was way back in 2018.[i] That means they passed exactly zero LGBTIQ-related laws during the entire parliamentary term which has just ended.

By way of contrast, the Victorian Government reformed their Equal Opportunity Act (to better protect trans, non-binary and intersex people, and protect LGBTQ students and teachers), updated trans birth certificate laws, and banned conversion practices, all in the same period (2019-22).

To be fair, during the past term the Berejiklian/Perrottet Government did initiate a Special Commission of Inquiry into LGBTIQ hate crimes (although they rejected community calls for this to be constituted as a Royal Commission, and it obviously remains to be seen what the practical outcomes of the Inquiry will be, if any).

The NSW Government also ultimately rejected Mark Latham’s legislative attack on trans kids. Although that was only after a parliamentary inquiry in which all three Coalition Committee members supported his Bill, and an 18-month public debate during which trans kids and their families felt abandoned. Plus, as I wrote at the time, not going backwards (by rejecting Latham’s Bill) is not the same thing as going forwards (like pro-actively addressing all of the ways in which NSW law still discriminates against trans and gender diverse people).

Perhaps the only unequivocally positive achievement during the term was the development and launch of the NSW LGBTIQ+ Health Strategy 2022-27, which contains a number of important initiatives.

However, no amount of health programs can remove the legal prejudice which confronts LGBTIQ people in NSW – only Government, and Parliament, can do that.

On that note, I find it incredibly curious, and probably revealing that, despite knowing World Pride was headed to Sydney since October 2019, the NSW Government took exactly zero steps to fix any of the four major deficiencies in LGBTIQ rights in this state. They were apparently content for the spotlight to fall on NSW and proudly show their failures to the world.

With the state election on March 25 (less than a month after World Pride finishes), perhaps they thought we would be satisfied with the ‘bread and circuses’ of the coming weeks. Or, to adapt another Roman saying, maybe they believed we would be happy to just dance while our human rights burn.

Well, they might soon discover they were badly mistaken.

[UPDATE 17 February 2023: Following pressure for Independent Member for Sydney Alex Greenwich MP, who has developed his own legislation to ban conversion practices, and a promise by the Labor Opposition to do the same if elected, Premier Perrottet finally expressed ‘in-principle support’ for a ban. However, there remains no detail to this expression of support, including whether it specifically includes gender identity conversion practices, or whether it will cover all sites where conversion practices occur, including religious settings.

UPDATE 23 February 2023: This week, Premier Perrottet wrote to faith leaders to reassure them any bans on conversion practices would not affect religious freedoms, as well as telling a community forum: ‘We will not ban prayer. We will not ban preaching. That is fundamental to freedom of religion.’ In effect, it seems likely any ban by a re-elected Liberal Government would therefore exclude religious settings, where the vast majority of harm is caused. In which case, a Perrottet conversion practices ban would not be worth the paper it is printed on.]

Again, to be fair, this is not to let the NSW Labor Opposition off the hook either.

They were also missing in action in terms of defending our community from Mark Latham’s legislative attack on trans kids, with neither of their Leaders (Jodi McKay and Chris Minns) prepared to publicly condemn it, and one of the two ALP members of the parliamentary Committee actively supporting it.

After 12 years in Opposition, and less than seven weeks out from the election, they also don’t have a comprehensive LGBTIQ policy agenda. Indeed, based on Chris Minns’ ‘Fresh Start Plan’, and the issues listed on his website (https://www.chrisminns.com.au/issues), they don’t appear to have any specific LGBTIQ election policies at all.

Having said that, they do commit to referring the Anti-Discrimination Act to the Law Reform Commission for ‘holistic review’, although the policy (here: https://www.chrisminns.com.au/reviewantidiscriminationact) doesn’t make any detailed commitments in relation to LGBTIQ inclusion, such as protecting LGBTQ students or teachers, or covering bisexual, non-binary or intersex people (while specifically noting ‘the need to address discrimination on the basis of religion.’)

The Policy Committee Report to last year’s ALP State Conference also suggests ‘an incoming NSW Labor Government will work with relevant government agencies and other stakeholders to ban gay conversion therapy in NSW.’ But this is problematic, not just because it is silent on gender identity conversion practices, but also because it goes on to note ‘any proposed legislation to ban gay conversion therapy must not outlaw individuals voluntarily seeking out medical, health, allied health or other advice and assistance regarding their personal circumstances’.

[UPDATE 11 February 2023: Today, Opposition Leader Chris Minns committed a Labor Government to banning LGBTQ+ conversion practices. Importantly, this includes both formal and informal practices, covers LGBTQ+ (rather than just sexual orientation), and features a commitment to work with survivors in drafting the legislation. More details here.

UPDATE 27 February 2023: Unfortunately, just like Premier Perrottet before him, today Opposition Leader Mines ‘reassured’ faith leaders that the ALP’s ban on conversion practices would not impact ‘religious freedom’. His quote, as reported by the Sydney Morning Herald: ‘Taking offence at the teachings of a religious leader will not be banned, expressing a religious belief through sermon will not be banned, and an individual, with their own consent, seeking guidance through prayer will not be banned either.’ This means the ALP’s ban will also only be partial, and therefore only partially effective.]

While there still appears to be no ALP commitments in relation to trans access to birth certificates, or ending medical interventions on intersex kids.

This situation, in 2023, is simply not good enough. The LGBTIQ community of NSW deserves much better, from the Government and the Opposition.

I should clarify here that this article is by no means a criticism of Sydney World Pride, or of its organisers.

Celebrating pride is a worthy and important activity, in and of itself, especially if it contributes to long-lasting culture change. Sydney World Pride’s focus on First Nations LGBTQIA+SB people, as well as human rights in the Asia-Pacific, are both welcome. And, on a personal level, I’m genuinely looking forward to a fortnight of queer cultural events and parties (the tiredness that will inevitably follow, perhaps less so).

However, when the glitter has been swept up, and the paint from the rainbows which have been painted across Sydney starts to crack and fade, we will still be left living under the worst LGBTIQ laws in Australia.

Laws which mean a gay student who simply holds his boyfriend’s hand at Fair Day could be expelled the very next day.

Laws which allow a school to sack a teacher just for marching with her wife and children in the Rainbow Families float in the Mardi Gras Parade.

During World Pride, trans and gender diverse people will have the opportunity to walk across the Harbour Bridge. But most still won’t be able to walk into the NSW Registry of Births, Deaths and Marriages to update their birth certificate simply to match their gender identity.

It is also likely many LGBTQ people will begin their ‘coming out’ journey over the next month, inspired by the visibility of World Pride. But if they’re in NSW and don’t have a supportive family and/or community, they could still be subjected to sexual orientation or gender identity conversion practices – entirely lawfully.

Finally, Sydney World Pride will bring much celebration of the human body, and the joy it can bring. But – tragically – in 2023, NSW continues to allow violations of the bodily integrity of children born with variations of sex characteristics.

So, by all means celebrate during Sydney World Pride, including the achievements that have already been won, and our resilience in the face of ongoing oppression. I know I will.

But we cannot allow ourselves to be distracted from the challenges which remain, challenges which are especially acute right here in NSW.

What better time then to raise our voices, loudly, passionately, as a community, to tell the Government, and Opposition – and anybody else who is seeking our vote on 25 March – that our community deserves better than the legal prejudice which we currently endure?

NB This post is written in a personal capacity, and does not reflect the views of employers past or present, nor of any community organisations with which I am involved.

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] In 2018, the then-Berejiklian Government passed two LGBTIQ-related reforms:

-the first ended forced trans divorce (although they were effectively compelled to do this following the passage of marriage reforms federally), and

-the second replaced homosexual and transgender serious vilification offences in the Anti-Discrimination Act with sexual orientation, gender identity and intersex status ‘threatening or inciting violence’ offences in the Crimes Act (although my understanding is that these offences have yet to be used).

Submission to the WA Law Reform Commission Review of the Equal Opportunity Act 1984

Posted on by

Law Reform Commission

GPO Box F317

Perth WA 6841

Via email: equalopportunityreview@justice.wa.gov.au

Friday 5 November 2021

To the Commission

Submission to Review of the Equal Opportunity Act 1984 (WA)

Thank you for the opportunity to provide this individual submission in response to the Commission’s Discussion Paper as part of this important and long-overdue review.

I do so as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as a leading expert on LGBTI anti-discrimination law in Australia, as demonstrated by my personal website www.alastairlawrie.net

Based on this experience, I submit that the Equal Opportunity Act 1984 (WA) is one of the worst LGBTI anti-discrimination laws in Australia, failing to offer necessary protections to multiple sections of the LGBTI community, across multiple areas.[i]

In this submission, I will provide major comments in relation to three primary areas for reform:[ii]

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

I will then provide some additional comments regarding a number of other issues raised in the Discussion Paper.

Protected Attributes

Gender identity

I welcome the Discussion Paper’s focus on the issue of ‘gender history discrimination and gender identity’ on pages 107 to 109 (although I also note the problematic aspects of this discussion in relation to sex characteristics, which I will address further below).

Western Australia’s anti-discrimination protections for trans and gender diverse people are the narrowest and therefore most limited in Australia.

It is the only jurisdiction to limit anti-discrimination coverage to people who have undergone surgical and/or hormonal gender affirmation treatment, and have also had that gender affirmation recognised by the State (in this case, under the Gender Reassignment Act 2000 (WA)).[iii]

This is because of the combination of three provisions: the definition of gender reassigned person in section 4:

‘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’;

the definition of ‘gender history’ in section 35AA:

(1) ‘For 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.

(2) In subsection (1)-

opposite sex means a sex of which the person was not a member at birth’;

and the test for discrimination on the protected attribute of ‘gender history’ in section 35AB (and subsequent sections):

(1) ‘For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.’

In my view, there is no justification to limit protections for gender identity-related discrimination to the comparatively small group of people who have had their gender identity recognised by the State, while leaving the much larger group of other trans and gender diverse people without any protections whatsoever.

It is time for Western Australia to remove this limitation, and follow the lead of the Commonwealth Government, and all other states and territories, by removing any link between formal gender recognition and anti-discrimination protection.

A related problem is caused by the definition of ‘gender history’ in section 35AA, which limits protections to people who ‘identify as a member of the opposite sex’ – meaning a person who was assigned female at birth but whose gender identity is male, and vice versa.

Irrespective of the gender recognition restriction (above), this definition itself excludes a wide range of nonbinary and gender diverse people whose gender identities do not neatly fit within this supposed ‘gender binary’.

Unfortunately, in this respect, Western Australia has some company – anti-discrimination coverage in NSW, Queensland and the Northern Territory also excludes nonbinary and gender diverse people.

However, that means all other jurisdictions, including the Commonwealth, Victoria, South Australia, Tasmania and the ACT, have amended their laws to protect nonbinary and gender diverse people.

Once again, I can see no legitimate justification to allow discrimination against nonbinary and gender diverse people on the basis of their gender identity.

It is time for Western Australia to follow the best practice approach of other jurisdictions. The most recent, and not-coincidentally most inclusive, is the definition of gender identity which commenced in the Victoria Equal Opportunity Act 2010 on 26 October 2021:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’ (section 4).

Finally, I see no justification for why anti-discrimination protections for trans and gender diverse people should apply in fewer areas of public life compared to other protected attributes. The Act should be amended so that the prohibition on discrimination on the basis of gender identity applies in the same areas as race, sex and sexual orientation.

Recommendation 1:

Trans and gender diverse people in Western Australia should be protected against discrimination irrespective of whether their gender identity is formally recognised by the State, and irrespective of whether their gender identity is binary, nonbinary or gender diverse.

This should be achieved by replacing the protected attribute of ‘gender history’ with a protected attribute of ‘gender identity’, and adopting the best practice definition from the Victorian Equal Opportunity Act 2010:

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

Prohibitions against discrimination on the basis of gender identity should also apply in the same areas of public life as existing core protected attributes, such as race, sex and sexual orientation.

Sex characteristics

As flagged earlier, perhaps the most disappointing aspect of the entire Discussion Paper is the conflation of the two distinct protected attributes of gender identity and sex characteristics.

In the section ‘Gender history discrimination / gender identity / intersex status’ on pages 107 to 109, it is unclear whether the Discussion Paper’s author(s) understand the differences between trans and gender diverse people, and people with innate variations of sex characteristics (intersex people).

Indeed, the questions posed on page 109 – ‘Should the protections in the Act be expanded beyond the currently defined gender reassigned persons (for example, persons identifying as another sex)? Should there be exceptions? What other legislation is relevant to this provision?’ – do not even ask directly about what attribute should be introduced to protect people with innate variations of sex characteristics against discrimination.

Obviously, I believe that intersex people in Western Australia do require protection against discrimination under the Equal Opportunity Act.

In my view, this should be achieved by introducing a new protected attribute of ‘sex characteristics’, as called for by intersex people and organisations in the March 2017 Darlington Statement, and as reflected in the Yogyakarta Principles plus 10. 

The terminology ‘sex characteristics’ is best practice, and has been recently introduced in both the ACT and Victoria (with ‘intersex variations of sex characteristics’ covered in Tasmania). Sex characteristics is also preferred compared to older attributes of ‘intersex status’, as protected in the Sex Discrimination Act 1984 (Cth), and in South Australia.

I endorse the definition of sex characteristics proposed by Intersex Human Rights Australia in their submission in response to the Discussion Paper:[iv]

‘sex characteristics means a person’s physical features relating to sex, and includes:

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

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Recommendation 2:

People with innate variations of sex characteristics (intersex people) in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by introducing a protected attribute of ‘sex characteristics’, based on the wording used in the submission by Intersex Human Rights Australia:

‘sex characteristics means a person’s physical features relating to sex, and includes:

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

(b) the person’s chromosomes; and

(c) the person’s hormones; and

(d) secondary features emerging as a result of puberty.’

Sexual orientation

One issue not addressed at all in the Discussion Paper is the need to update the definition of the protected attribute of sexual orientation.

Currently, section 4 of the Act defines sexual orientation as:

‘in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.’

While this does include people who identify as lesbian, gay and bisexual, it does not expressly include other sexual orientations such as pansexuality. It has also fallen behind the best practice definitions of sexual orientation adopted elsewhere in Australia.

For example, recent amendments to the Victorian Equal Opportunity Act 2010, which commenced on 26 October 2021, define sexual orientation as:

‘means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

The WA Equal Opportunity Act 1984 should be amended in a similar manner to ensure sexual orientations other than lesbian, gay and bisexual – including people identifying as pansexual – are explicitly protected.

Recommendation 3:

People with sexual orientations other than lesbian, gay and bisexual – such as pansexual people – in Western Australia should be protected against discrimination on the basis of who they are.

This should be achieved by modernising the definition of ‘sexual orientation’ in section 4 of the Act, with reference to the best practice definition in the Victorian Equal Opportunity Act 2010:

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

*****

Religious Exceptions

The religious exceptions contained in the Equal Opportunity Act 1984 (WA) are excessive, and do not reflect contemporary community standards. Nor do they respect the right of LGBT people in Western Australia to go about their daily lives, free from discrimination. In employment. In education. In health and community services. In all areas of public life.

For example, section 72 currently provides:

‘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.’

While there may be some possible justification for sub-sections (a) through (c) (although I would argue (c) needs to be more narrowly drafted), in order to respect the ability of religious bodies to employ, train and appoint people to engage in religious ceremonies, there can be no possible justification for granting religious organisations an effective ‘blank cheque’ to discriminate against people in all areas of public life, and in relation to all protected attributes, including sexual orientation and gender identity.

In this respect, the Western Australian Equal Opportunity Act has fallen well behind best practice, and in particular the approach to religious exceptions adopted by Tasmania 23 years ago.

Under the Tasmania Anti-Discrimination Act 1998, the circumstances in which religious organisations may discriminate are more narrowly constrained. More importantly, such discrimination is only allowed on the ground of religious belief or activity or religious activity, and therefore not on other grounds such as sexual orientation, gender identity or intersex variations of sex characteristics.

Not only is this, in my view, a preferrable accommodation of the legitimate needs of religious organisations to form communities of faith, but it has also operated successfully for more than two decades, thereby setting an example I would strongly encourage Western Australia to follow.

The arguments against allowing religious organisations to discriminate against LGBT people generally are even stronger in relation to LGBT students, teachers and other staff in the context of religious schools.

Under section 73 of the Equal Opportunity Act, religious schools are permitted to discriminate against:

  • LGBT teachers (sub-section (a))
  • LGBT contract workers (sub-section (b)), and
  • LGBT students and/or families (sub-section (c)).

This is unacceptable. LGBT teachers should be free to impart their knowledge, and utilise their skills, in any environment without having to fear that their sexual orientation, gender identity or relationship status will be used to discipline them in, or even dismiss them from, their role. 

LGBT students should also be free to learn without fearing that their place of learning will discriminate against them. The parents of LGBT students, as well as rainbow families with children, should be able to feel confident in sending their children to any school in the knowledge they will not be mistreated because of who they, or their families, are.

Currently, Western Australia’s anti-discrimination laws fall well short of this ideal.

Instead, both in relation to religious exceptions broadly, and in relation to religious schools specifically, I submit that Western Australia should adopt similar provisions to those already successfully operating in the Tasmanian Anti-Discrimination Act 1998, namely:

51. Employment based on religion

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

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.

52. Participation in religious observance

A person may discriminate against another person on the ground of religious belief or affiliation 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.

There is obviously a lot of detail in these sections, but one particular point I would like to draw to the Commission’s attention is that it does allow religious schools to discriminate on the basis of religious belief or affiliation or religious activity against students, but only at admission or enrolment, and not post-enrolment.

Preferencing students of a particular religion is a concession to the ability of denominations to form communities of faith in which to educate children. However, the limitation – only allowing discrimination at enrolment and not beyond – is just as important, for two reasons.

First, it allows the child to determine their own religious beliefs as they age. Schools should not be able to discriminate against students who, as they grow older, question the faith of the school, or particular elements of that faith, adopt a different faith, or decide to have no faith at all.

Second, prohibiting discrimination on the basis of religious belief beyond enrolment is a necessary safeguard against religious schools imposing discrimination on the basis of other attributes, including sexual orientation or gender identity, via alternative or indirect routes.

For example, were religious schools permitted to discriminate on the basis of religious belief throughout a student’s education, they could potentially ask students to sign codes of conduct which state that ‘homosexuality is intrinsically disordered’ or that ‘sex is binary and determined at birth’ (thereby erasing trans and gender diverse children).

The school in these circumstances could claim students who refused to sign such a document, and were subsequently punished, were not being discriminated against because of their sexual orientation or gender identity, but because of the specific tenets of the faith of the school. This discrimination would nevertheless inflict the same harmful outcome on LGBT students and should be prohibited.

Indeed, each of the four Australian jurisdictions which have already legislated to protect LGBT students in religious schools against discrimination (Queensland, the Northern Territory and the ACT, in addition to Tasmania) only allow religious schools to discriminate against students on the basis of religious belief, and only at the point of enrolment.

Finally, in relation to religious exceptions, I would like to highlight three alternative approaches to this issue which I would caution against being adopted in the Western Australian Equal Opportunity Act.

First, the Queensland Anti-Discrimination Act 1991, and specifically section 25, establishes what I describe as a ‘Don’t Ask, Don’t Tell’ scheme, whereby religious schools are not allowed to ask teachers about their sexual orientation or gender identity.

However, where LGBT teachers and other staff members are ‘out’, disclose anything about their orientation, identity or relationship status – or ‘openly act in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs’ (sub-section 25(3)(a)) – they can be fired.

Forcing LGBT teachers into the closet in order to teach is inhumane. Compelling them to continually watch over the shoulders, and be ever-vigilant in policing their own sexual orientation and/or gender identity, is intolerable.

Don’t Ask, Don’t Tell was a failed policy in the US military. It is an awful approach under the Queensland Anti-Discrimination Act. And it must not be replicated in Western Australia.

Second, the South Australian Equal Opportunity Act 1984, and specifically section 4, adopts what I consider to be an unsatisfactory approach in allowing discrimination by religious schools against LGBTI teachers, but only where the person discriminated against was provided with a publicly-available policy spelling out this discrimination.

Specifically, subsection 34(3) states:

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.

In my view, the publication of such a policy does not ameliorate the discrimination involved. It does not make discrimination against LGBTI teachers any more acceptable, only more public.

Indeed, attempting to justify such a policy on the basis of ‘transparency’ is akin to suggesting the White Australia Policy was something less than racist because it was written down. Anti-LGBTI prejudice is just as unacceptable when it is published.

Third, the Victorian Government recently proposed amendments to the religious exceptions in their Equal Opportunity Act 2010 (via the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, currently awaiting debate).

While passage of this legislation would result in significant improvements to their anti-discrimination framework, including removing the ability of religious schools to discriminate against LGBT students, teachers and other staff, it also introduces a dichotomy into the Act, establishing different protections in some circumstances based on whether the services being delivered are government funded or not (proposed new section 82B).

Where those services are not government funded – even if they are in the public sphere (such as community services) – religious organisations would retain the ability to discriminate against people accessing those services on the basis of ‘religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity’ (existing section 82(2)).

In my view, the discrimination itself remains unacceptable irrespective of the source of the funds used in its execution. This is both a practical consideration – that the individuals who are discriminated against in this way would suffer adverse and unjustified impacts.

And a normative one. A primary function of anti-discrimination laws is to signal to society what types of discrimination are acceptable, and what types are not. Retaining provisions which explicitly state there will be certain situations in which it is acceptable to discriminate on the basis of sexual orientation or gender identity reinforces negative anti-LGBT attitudes. 

In this way, while a large step forward, the proposed Victorian amendments still fall short of the best practice Tasmanian approach.

Recommendation 4:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against discrimination by religious organisations, both in employment and in relation to access to services.

This should include protection for LGBT students and their families, and for teachers and other staff members, in relation to religious schools and other religious educational institutions.

Where discrimination by religious schools is allowed in relation to students, this must be limited to the ground of religious belief or activity, and must not be legally permitted beyond enrolment.

This should be achieved by using the best practice provisions of the Tasmanian Anti-Discrimination Act 1998 – and specifically sections 51, 51A and 52 – as a starting point.

*****

Anti-Vilification Protections

I welcome the Discussion Paper’s focus on the issue of anti-vilification protections, from page 150 onwards, including acknowledgement that in Western Australia, only racial harassment and some aspects of racial vilification are prohibited, and not general vilification on the basis of other protected attributes.

In my view, this is a significant weakness of the Equal Opportunity Act 1984 (WA), especially given the ongoing high levels of anti-LGBTI harassment and hate speech in the community.

It also means that, in yet another core area of anti-discrimination legislation, Western Australia has fallen behind the standard set by other jurisdictions.[v]

Specifically, Tasmania and the ACT both prohibit vilification against all parts of the lesbian, gay, bisexual, transgender and intersex community.

Meanwhile, Queensland prohibits vilification against lesbian, gay, bisexual and some transgender people (those with binary gender identities), but does not prohibit vilification against nonbinary people or people with innate variations of sex characteristics.

Finally, NSW provides different parts of the LGBTI community with different levels of protection – all LGBTI people are protected by the Crimes Act 1900 (NSW) offence of publicly threatening or inciting violence (section 93Z), but only lesbian, gay and some transgender people (those with binary gender identities) are able to access civil anti-vilification protections under the Anti-Discrimination Act 1977 (NSW).

Importantly, it should be noted that the Victorian Government recently committed to extending its own vilification protections to cover sexual orientation, gender identity and sex characteristics, meaning a clear majority of Australian jurisdictions have already, or will soon, cover the LGBTI community against vilification either in part or in full.

In my view, LGBTI people in Western Australia should also be protected against vilification by the introduction of explicit vilification protections in the Equal Opportunity Act 1984. These should cover the protected attributes of:

  • sexual orientation
  • gender identity, and
  • sex characteristics

as defined earlier in this submission.

Recommendation 5:

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Western Australia should be protected against vilification.

This should be achieved by the inclusion of prohibitions on vilification within the Equal Opportunity Act 1984 which cover (at least):

  • sexual orientation
  • gender identity, and
  • sex characteristics.

In terms of what form these provisions should take, I believe the Tasmanian Anti-Discrimination Act 1998 demonstrates best practice in this area.

Specifically, Tasmania adopts a bifurcated approach. Section 17(1) provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute… 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.’

While section 19 states that:

‘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 affiliation or religious 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.’

This approach – a broad-based prohibition on conduct which offends, humiliates, intimidates, insults or ridicules, supplemented by a narrower prohibition on the even more serious acts of inciting hatred, serious contempt or severe ridicule – ensures that all types of behaviour which should be banned are in fact covered.

Recommendation 6:

LGBTI people in Western Australia should enjoy both broad-based protections against conduct which offends, humiliates, intimidates, insults or ridicules, as well as narrower protections against conduct which incites hatred, serious contempt or severe ridicule.

This should be achieved by adopting the bifurcated model of the Tasmanian Anti-Discrimination Act 1998, and specifically sections 17(1) and 19 of that legislation.

I note that the Discussion Paper asks the following questions on page 153:

Should or how may vilification provisions address concerns about the impact on other rights and exemptions under the Act?

and

Should or how may vilification provisions address concerns around the loss of freedom of speech?

In response, I would like to highlight that we are talking about harmful speech, objectively-determined (the test in section 17(1) of the Tasmanian Anti-Discrimination Act provides that it must be ‘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’).

It is not a question of how the victim of such harmful speech feels, but about whether such harmful speech would be seen by others as causing offence, humiliation, intimidation, insult or ridicule.

Having said that, Tasmania, like all other jurisdictions which have adopted prohibitions on vilification, does provide an exception for speech which is for a public purpose. Section 55 of the Anti-Discrimination Act 1998 (Tas) states:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

These carve-outs are relatively broad, especially sub-section 55(c)(ii), and would seem to provide adequate and appropriate balance in the interests of free speech where that speech is in good faith and for a public purpose.

I should note that some other jurisdictions go slightly further. For example, civil vilification prohibitions in NSW include the following carve-out (taken from section 49ZT(2)(c) of the Anti-Discrimination Act 1977, which deals with homosexual vilification):

‘a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.’

I do not support the express inclusion of ‘religious instruction’ in this context. There does not appear to be a legitimate reason why religious instruction should be elevated above other ‘public purposes’ in this way (noting that it is already exempt under the Tasmanian provisions where it is ‘done in good faith for any purpose in the public interest’). 

Indeed, there was an attempt in 2016 and 2017 to amend the Tasmanian Anti-Discrimination Act in a similar way, which was thankfully defeated by their Legislative Council.

In my view, section 55 of the Tasmanian Act remains the best attempt to ensure that harmful speech is prohibited while legitimate speech is allowed.

Recommendation 7:

In order to ensure legitimate speech continues to be allowed, there is a need to introduce a provision exempting conduct which is done in good faith and for a public interest purpose.

This should be achieved by adopting the best practice exemption found in section 55 of the Tasmanian Anti-Discrimination Act 1998:

‘The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.’

*****

Other Issues

Removing Barriers to Identity Documentation for Trans and Gender Diverse People

The current restriction of anti-discrimination protections in the Act to ‘gender reassigned persons on gender history grounds’ inevitably raises the issue of lack of access to identity documentation, including birth certificates, for trans and gender diverse people.

Even if, as recommended earlier, a new protected attribute of gender identity replaces gender history, there is still an urgent need to remove barriers to this documentation.

Indeed, the terms of the Gender Reassignment Act 2000 (WA) make Western Australia the third worst jurisdiction in Australia for trans and gender diverse people to access birth certificates reflecting their gender identity.[vi]

The only reason it is not equal worst, with NSW and Queensland, is because the High Court decision in AB v Western Australia; AH v Western Australia [2011] HCA 42 removed the requirement for genital surgery – although there remains a requirement for physical treatment of some kind.

In this way, the approach to this issue in Western Australia falls a long way behind the best practice of other jurisdictions, a fact acknowledged by the WA Law Reform Commission previously in its ‘Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics’ (Project 108). The final report of that review recommended both that:

‘The Gender Reassignment Act 2000 (WA) and Gender Reassignment Regulations 2001 (WA) be repealed’ (Recommendation 10), and

‘The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an administrative process to change the gender classification on a Gender Identity Certificate’ (Recommendation 11).

From my perspective, legislation which provides trans and gender diverse people access to identity documents, including birth certificates, that reflect their gender identity, should meet at least the following three principles:[vii]

  1. Access to amended identity documentation must not depend on surgery or other medical treatments
  2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
  3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

Currently, only one Australian jurisdiction’s birth certificate framework satisfies these criteria: the Tasmanian Births, Deaths and Marriages Registration Act 1999, which – following amendments in 2019 – now allows for complete self-identification of gender identity.[viii]

In modernising its approach to identity documentation, Western Australia should therefore follow the best practice example of Tasmania.

Recommendation 8:

Trans and gender diverse people in Western Australia should be able to access identity documents, including birth certificates, that reflect their gender identities, without the need for surgery or other medical treatments, and without doctors or other medical professionals playing the role of gate-keeper. Access to identity documents should be based on self-identification alone.

This should be achieved by adopting the best practice provisions of the Tasmanian Births, Deaths and Marriages Registration Act 1999.

Prohibiting Coercive Surgeries and Other Medical Treatments on People with Innate Variations of Sex Characteristics

Earlier in this submission, I called for the inclusion of a new protected attribute of sex characteristics, to ensure that people with innate variations of sex characteristics are protected against discrimination in all areas of public life.

While the introduction of this attribute would be an important step towards recognition of the human rights and dignity of intersex people, it is not nearly as important as ending what I consider to be the greatest violation of LGBTI rights in Australia: the ongoing performance of coercive surgeries and other involuntary medical treatments on people with innate variations of sex characteristics, and especially intersex children.

I therefore fully endorse the recommendation made by Intersex Human Rights Australia in its submission to the current consultation, that:[ix]

‘Protections from harmful practices in medical settings

In line with evolving best practice, as described in public commitments and action in the Australian Capital Territory and Victoria, and in line with recommendations of UN Treaty Bodies to Australia, we recommend that the Western Australian government enact separate protections from harmful practices in medical settings for people with innate variations of sex characteristics.’

Recommendation 9:

People with innate variations of sex characteristics in Western Australia should be legally protected from harmful practices in medical settings. Prohibitions on these practices should be developed in partnership with the intersex community and its representatives, including Intersex Human Rights Australia.

Prohibiting Conversion Practices

I welcome the Discussion Paper’s inclusion of a section on the prohibition of sexual orientation and gender identity conversion practices (on page 193).

In my view, such practices constitute psychological torture, and should be prohibited in all settings, including religious environments. This should apply irrespective of whether the person undergoing this torture is a minor or an adult (on the basis that it is not possible to give ‘informed consent’ to torture).

As to the question of whether Western Australia should adopt the models already in place in Queensland, the ACT, or Victoria, a combination of these approaches, or a new approach – and therefore whether this prohibition should be included in the Equal Opportunity Act or elsewhere – I defer to the views of survivors of conversion practices, and encourage the Commission to consult directly with the Brave Network and other survivor organisations.

Recommendation 10:

Lesbian, gay, bisexual and transgender people in Western Australia should be protected against sexual orientation and gender identity conversion practices. Prohibitions on these practices should be developed in partnership with survivors of these practices and their representatives, including the Brave Network.

Long Title and Objects Clause

Both the Long Title of the Act, and the Objects Clause (in section 3), should be updated to reflect improvements recommended above. This includes:

  • Replacing gender history with gender identity
  • Removing limitations in relation to gender identity (ie removing the qualifier ‘in certain cases’)
  • Adding sex characteristics, and
  • Updating sub-section 3(d) to provide that ‘to promote recognition and acceptance within the community of the equality of persons…’ applies to all protected attributes, including gender identity and sex characteristics.

This last change to the objects should also be reflected in the substantive provisions of the Act. For example, section 35ZD of the of Act currently provides an exemption covering ‘measures intended to achieve equality’ for people on the basis of sexual orientation:

‘Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is-

(a) to ensure that persons of a particular sexual orientation have equal opportunities with other persons in circumstances in relation to which provisions is made by this Act; or

(b) to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.’

There is no equivalent provision in relation to gender identity – but there should be.

Interpretive Provision

I note the discussion of a possible interpretive provision on pages 104 to 106 of the Discussion Paper. This includes an interpretive provision proposed by Christian Schools Australia on page 105.

This interpretive provision appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW – and it should be rejected for the same reasons it should be rejected in NSW, too.

This is best explained by looking at the Explanatory Memorandum for the One Nation Bill, and in particular the example of the Jewish employer of a publisher:

‘As for the remaining provisions of the Act, section 22L must be interpreted in accordance with new section 3 [the interpretive provision proposed by Christian Schools Australia], Principles of Act. In particular, the Siracusa Principles apply the requirement that limitations on religious manifestation must ‘pursue a legitimate aim and be proportionate to that aim’. The following example assists in clarifying this intended operation.

Example: A Satanist requests that a publisher prints material that promote the teachings of Satanism. A Jewish employee of the publisher requests that she not be required to facilitate the order. Having fundamental regard to the International Covenant on Civil and Political Rights and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, it would not be necessary or proportionate, for the employer to require her involvement in the order where alternative employees who do not have a genuine religious objection are available to facilitate the order. Similarly, it would not be necessary or proportionate for the employer to require her involvement in the order where alternative publishers are reasonably available to facilitate the order. In both of these cases, for the employer to require her involvement in the order would use ‘more restrictive means than are required’. In addition, to require such conduct would not be compatible with the international instruments stated at section 3.’

As I wrote in the Sydney Morning Herald last October,[x] this outcome is perverse, and creates more rather than less discrimination:

‘[A]n employee can refuse to perform the core component of their role (in this case, publishing materials) solely on the basis of their personal religious beliefs, even if this means sending the customer’s business to a competitor.

This would give employees the right to veto the decisions of their employer, including what goods and services are offered and to whom.

And what of the customer? In this example, they are turned away by the publisher because their religious belief does not accord with that of the employee, which is surely the type of discrimination that should be prohibited under a genuine Religious Discrimination Bill.

It’s important also to get a sense of how far this would go. If this is how the bill is intended to operate, employees may refuse to provide goods or services to a wide range of people because of the employee’s religious beliefs: not just to people from different religions, or no religion, but to single parents, unmarried couples, women, people with disability and lesbian, gay, bisexual, transgender or intersex people, among others.

Importantly, from the customer’s perspective, there is no way of knowing in advance whether a particular business will refuse to serve them. Based on the scenario set out in the explanatory notes, any commercial busines could turn away any customer based on the religious beliefs of an individual worker. That is a recipe for chaos.

And it will leave employers around the state in an invidious position: either they compel their employee to perform the inherent requirements of their job and risk the employee claiming discrimination on the basis of religious belief, or they refuse to provide goods and services to customers on the basis of who they are and guarantee not just loss of income, but risk a discrimination complaint for the customer instead.

It’s an unholy mess.’

Western Australia must avoid making the same mistakes as the extreme and unprecedented Bill proposed by One Nation in NSW, where one human right (‘religious freedom’) is prioritised over and above other human rights, including what is the fundamental purpose of anti-discrimination laws: the right to live free from discrimination.

Interpretive provisions which single out ‘religious freedom’ must therefore be rejected.

Additional Protected Attributes

I would like to express my in-principle support for the inclusion of additional protected attributes within the Equal Opportunity Act, particularly where those attributes may be disproportionately relevant to the LGBTI community. These include:

  • Lawful sexual activity (discussed on page 123), and
  • Irrelevant medical record (discussed on page 121).

In terms of this latter attribute, I also endorse the recommendation made by Intersex Human Rights Australia in their submission to the current inquiry that:[xi]

‘In line with best practice international developments and recommendations for Australian jurisdictions, we recommend that the Western Australian government prohibit genetic discrimination in insurance and employment.’

Finally, I support the inclusion of a new protected attribute of ‘irrelevant criminal record’ (as discussed on page 120). I note the Discussion Paper’s acknowledgement there are already some protections for ‘expunged homosexual convictions’ in relation to work as created by the Historical Homosexual Convictions Expungement Act 2018 (WA).

While I believe expunged homosexual convictions would likely fall within irrelevant criminal record – and therefore be protected against discrimination in areas beyond work – this should include clarification that expunged homosexual convictions will always be ‘irrelevant’.

This is in recognition of the fact such convictions are solely the product of state-sponsored homophobia, biphobia and transphobia, and should never have constituted offences in the first place.

Definition of Religious or Political Conviction

I note the Discussion Paper considers whether to add a definition in relation to the existing protected attribute of ‘religious or political conviction’.

As part of this Discussion, an overly-expansive, and in my view, entirely-inappropriate definition for religion is provided by Christian Schools Australia (see page 122). In fact, this definition appears to be taken directly from the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW.

This would introduce an unnecessarily vague test for determining whether something constitutes religious belief or activity. It would be almost impossible to apply in practice, and should be rejected.

Instead, I submit that, should the Commission recommend the inclusion of definitions for political conviction and religious conviction, it should do so on the basis of the definitions in the ACT Discrimination Act 1991, namely:

‘political conviction includes-

(a) having a political conviction, belief, opinion or affiliation; and

(b) engaging in political activity; and

(c) not having a political conviction, belief, opinion or affiliation; and

(d) not engaging in political activity.’

‘religious conviction includes-

(a) having a religious conviction, belief, opinion or affiliation; and

(b) engaging in religious activity; and

(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and

(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and

(e) not having a religious conviction, belief, opinion or affiliation’ and

(f) not engaging in religious activity.’

Discrimination in Provision of Goods and Services Where Motivated by Religious Belief

While on the subject of religious belief, I would like to express my strong opposition to any proposal to allow individuals and businesses to refuse to provide goods and services, including on the basis of sexual orientation and gender identity, where that refusal is motivated by religious belief (as discussed on page 173).

Such a proposal would allow significant new discrimination against LGBT people individually, and LGBT couples. This discrimination would also be unpredictable in its operation – LGBT people going about their everyday life would know that any potential interaction could involve being lawfully discriminated against because of how they identity, or who they love.

The introduction of a new ‘exception’ of this kind would seriously undermine the purpose of having an anti-discrimination law in the first place, and should be categorically rejected.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details supplied below, should you require additional information.

Sincerely

Alastair Lawrie

Footnotes:

[i] For a comparative analysis of LGBTI anti-discrimination laws across Australia, please see: ‘A Quick Guide to Australian LGBTI Anti-Discrimination Laws. https://alastairlawrie.net/2017/07/29/a-quick-guide-to-australian-lgbti-anti-discrimination-laws/

[ii] These three areas draw from my article about the WA legislation: ‘What’s Wrong With Western Australia’s Equal Opportunity Act 1984?’ https://alastairlawrie.net/2016/10/23/whats-wrong-with-western-australias-equal-opportunity-act-1984/

[iii] While the definition of ‘recognised transgender person’ in section 4 of the NSW Anti-Discrimination Act 1977 is similarly restrictive, the interpretive clause in section 38A makes it clear that NSW anti-discrimination protections apply to transgender people with binary gender identities irrespective of whether their gender identity has been recognised by the State.

[iv] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[v] For a comparative analysis of LGBTI anti-vilification laws across Australia, please see: ‘Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification’. https://alastairlawrie.net/2020/06/01/did-you-know-most-australian-jurisdictions-dont-prohibit-anti-lgbti-vilification/

[vi] For a comparative analysis of birth certificate legislation across Australia, please see: ‘Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates’. https://alastairlawrie.net/2020/05/02/did-you-know-trans-people-in-nsw-and-queensland-still-require-surgery-to-update-their-birth-certificates/

[vii] As articulated in this post from my website: ‘Identity, Not Surgery’. https://alastairlawrie.net/2018/07/17/identity-not-surgery/

[viii] The approach in Victoria, via the Births, Deaths and Marriages Registration Amendment Act 2019, comes close, including that it removes requirements for medical treatment, and removes medical gatekeepers to accessing new identity documents. However, it does not fully satisfy the criteria of self-determination, because under section 30A, an applicant must include a ‘supporting statement’ from another person who both ‘believes that the applicant makes the application to alter the record of the sex of the applicant in good faith, and supports the application.’

[ix] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

[x] Alastair Lawrie, ‘Religious discrimination bill will create an unholy mess’, Sydney Morning Herald, 26 October, 2020, available here: https://www.smh.com.au/national/nsw/religious-discrimination-bill-will-create-an-unholy-mess-20201022-p567jx.html

[xi] Intersex Human Rights Australia, Submission to the WA Law Reform Commission on Anti-Discrimination Law Reform, 13 October 2021, available at: https://ihra.org.au/39075/walrc-anti-discrimination-2021/

No Cause for Celebration

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Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.

Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.

The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.

With Queensland promising to amend their birth certificate laws, NSW will soon be the only jurisdiction in Australia requiring trans people to undergo genital surgery (which many don’t want, and some who do can’t afford) to update their identity documents.

While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.

Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.

In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.

Earlier this month, a NSW Parliamentary Committee recommended adoption of the core elements of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, more accurately known as his anti-trans kids Bill.

That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.

By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.

Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):

  • Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
  • Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
  • Out students who transition while at school to the parents of every other student in their year group.

These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.

In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.

It is, frankly, embarrassing. And no-one should be more embarrassed than Premier Gladys Berejiklian, who for 13 months has steadfastly refused to condemn, or even comment on, these proposed changes – all the while allowing Latham to chair the inquiry into his own Bill.

Her reluctance to publicly reject his anti-trans agenda has only allowed it to gather strength. Not only did all three Coalition MLCs on the Committee endorse its recommendations, but her own Parliamentary Secretary for Education declared his personal support for the anti-trans kids Bill earlier this year. 

The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.

And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.

As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.

Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.

If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?

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Friends, Jagged Little Pill and Transphobia in the NSW Legislative Council

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In 1996, Australians were watching Friends and listening to Alanis Morissette while the NSW Upper House was the site of a toxic debate about trans law reform.

In 2021, Australians are watching the Friends Reunion, can book tickets to Jagged Little Pill: The Musical and the NSW Legislative Council is once again hosting hostile discussion about the rights of its trans citizens.

It is perhaps disappointing to realise how little progress has been made in terms of pop culture and representations of transgender people – with the Friends Reunion refusing to address the recurring transphobic jokes made at the expense of Chandler’s parent, and Jagged Little Pill: The Musical erasing the gender identity of a fictional nonbinary character on its journey to Broadway.

But it is downright depressing comparing the circumstances surrounding the Transgender (Anti-Discrimination and Other Acts) Act 1996 – which received royal assent 25 years ago this Saturday (19 June 1996) – and the current Parliamentary inquiry into the Education Legislation Amendment (Parental Rights) Bill 2020.

For a start, much of the language in the two debates, a quarter of a century apart, is disturbingly similar, with both deliberate misgendering,[i] and scaremongering about trans women in sports, playing starring roles in each.

With more than a hint of hyperbole, Liberal MLC Marlene Goldsmith declared in 1996 ‘This legislation will mean the end of women’s sports as a concept, an entitlement and a right.’

In 2021, Katherine Deves, speaking on behalf of something called ‘Save Women’s Sport Australasia’, complained that ‘gender identity’ requires women and girls ‘to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded.’

Meanwhile, any small advances – multiple references to ‘tranys’ in the 1996 Hansard[ii] thankfully haven’t been repeated more recently – don’t begin to overcome larger retreats elsewhere.

In the intervening 25 years, opponents of legal equality for trans people have pivoted from expressing pity about their plight, while dismissing trans issues as unimportant,[iii] to portraying trans people as potential predators, and a fundamental threat to ‘Western civilisation’.

This dramatic escalation in rhetoric comes not just from the mover of the latter Bill (One Nation’s Mark Latham, who described trans-inclusive education as ‘part of the post-modernist attack on the nuclear family’ in his Second Reading Speech), but also from multiple witnesses who appeared at April’s hearings into his horrific law.

For example, Mark Sneddon of the Institute for Civil Society said (rather uncivilly, and somewhat ominously) in supporting the Bill: ‘What we are trying to do – or what I understand this Bill is trying to do – is to reduce the social contagion influence of putting more people onto the conveyor belt of gender transition.’

Even fear campaigns about women’s bathrooms have worsened, rather than improved, over the past quarter century.

The only reference to toilets I could find in the 1996 Legislative Council debate came from Fred Nile (yes, the same one still sitting in that chamber), who said: ‘Because I am obviously not a woman, I do not know [how] a woman would feel to have a transsexual who was born a male sitting beside her in a woman’s washroom or powder room in a factory, office or club.’

In 2021, this argument has been weaponised, much more explicitly utilising the language of ‘threat’, with Terri Kelleher of the Australian Family Association giving evidence that ‘Is it not discrimination against natal girls if natal male students who identify as female are allowed to use their toilets, change rooms and showers and share overnight school camp accommodation? What about their right to feel safe and to their privacy in spaces where they may be in a state of undress or asleep?’ and later ‘Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. That is very serious in the light of the child-on-child sexual abuse in schools.’

And, although most participants in the 1996 debate seemed to at least accept that transgender people are who they say they are, by 2021 a number of extremists appearing before Latham’s Committee were regularly making points about high rates of ‘de-transitioning’ and distinguishing between ‘genuine’ and ‘non-genuine’ trans people, before citing ‘social contagion’ and ‘rapid onset gender dysphoria’ (despite all four arguments being completely unsupported by any evidence whatsoever).

However, the toxic atmosphere surrounding Latham’s anti-trans kids Bill, and the fact contemporary discussion seems to be even worse than it was two and a half decades ago, is merely one small part of much larger frustrations about the situation we find ourselves in today.

At the very least, the 1996 debate was about legislation that would ultimately deliver multiple steps forward for trans rights in this state. Not only did the Transgender (Anti-Discrimination and Other Acts) Act insert transgender as a protected attribute in the NSW Anti-Discrimination Act 1977, it also saw NSW become the first jurisdiction in Australia to legally prohibit transphobic vilification (something that still hasn’t happened under Commonwealth law, nor in Victoria, Western Australia, South Australia and the Northern Territory).

The same Act also amended the Births, Deaths and Marriages Registration Act 1995 to allow transgender people who had undergone gender affirmation surgery to access identity documentation reflecting their gender identity.

These were genuinely historic reforms.

In contrast, the deceptively-named Education Legislation Amendment (Parental Rights) Bill 2020 seeks to completely erase real-life trans and nonbinary students from classrooms and schoolyards across NSW, censoring the curriculum and denying them affirmation and support from teachers, principals and even school counsellors.

As I have written elsewhere, this legislation is the worst legislative attack on LGBTI rights in Australia this century.

Some people might be tempted to dismiss this threat given it is merely the product of fringe extremists in the NSW Upper House (one of the chamber’s perennial features). Except the positions of the major parties on this Bill are, so far, worse than when a generation of young people were mislearning the definition of ironic (myself included).

Back then, the Carr Labor Government relentlessly pursued their reforms to anti-discrimination and birth certificate laws. And, while the Collins Liberal/National Opposition ultimately voted against them (because of baseless concerns about the impact of birth certificate changes to women’s sport, including nonsensical statements about the Sydney Olympics), they at least expressed in-principle support for trans anti-discrimination protections.[iv]

In contrast, in the 10 months since Latham introduced his legislative assault on trans kids, neither the Berejiklian Liberal/National Government nor the McKay, and now Minns, Labor Opposition have publicly condemned it.

Indeed, they both voted in the Legislative Council for the Bill to be considered in more detail by a Committee chaired by Latham himself, while the Liberal Parliamentary Secretary for Education Kevin Conolly has expressed his personal support for it.

In failing to reject Latham’s transphobia, could the major parties be any more pathetic?

But the most frustrating part of all is that we need to expend significant time and energy working to defend existing rights, instead of campaigning for improvements to those same reforms passed in 1996.

Because those changes were far from perfect, even when they were first passed.

For example, the amendments to the Anti-Discrimination Act inserted a definition of ‘recognised transgender person’, applying to people who have undergone gender affirmation surgery and had that recognised under the Births, Deaths and Marriages Registration Act, even though it is irrelevant to determining whether anti-trans discrimination was prohibited under Part 3A (poor drafting which is still causing confusion in 2021, as demonstrated by transphobic discrimination by McIver’s Ladies Baths in Coogee earlier this year).

Unfortunately, neither the definition of ‘recognised transgender person’ nor Part 3A introduced protections against discrimination for trans and gender diverse people whose gender identity was nonbinary (instead only covering people who ‘identify as a member of the opposite sex’).[v]

The 1996 Anti-Discrimination Act reforms also permitted discrimination against trans students and teachers in publicly-funded ‘private educational authorities’, including (but not limited to) religious schools.[vi] Something that was difficult to justify 25 years ago, and is impossible to defend now.[vii]

Finally, in limiting access to updated birth certificates to people who have undergone gender affirmation surgery,[viii] the Births, Deaths and Marriages Registration Act changes excluded the majority of trans and gender diverse people who are either unable to access such procedures (including for financial reasons) or who do not wish to. After all, trans people should be in control of their gender identity, not the(ir) doctor.

This weakness is not brand new information, either. The serious limitations of the birth certificate changes were raised by both Democrat[ix] and Greens MLCs[x] at the time.

Indeed, over the last decade, South Australia, the ACT, Northern Territory, Tasmania and Victoria have all removed any requirement for transgender people to have physically invasive medical treatment in order to obtain new identity documentation.

While the re-elected McGowan Labor Government in WA is under pressure to implement the recommendations of a 2018 WA Law Reform Commission Report which supported the same, and the Palaszczuk Labor Government has committed to introduce its own changes later this year.

Which means it is likely that at some point this term NSW will become the only jurisdiction in Australia which still requires trans people to undergo surgery to access a new birth certificate. Just in time to be subjected to (well-deserved) global scorn as Sydney hosts World Pride in February and March 2023.

Nevertheless, just as the Liberal, National and Labor Parties have refused to publicly reject Latham’s anti-trans kids Bill, none are currently promising to fix the problems in the Anti-Discrimination Act first introduced back in 1996, nor have any committed to finally bring the Births, Deaths and Marriages Registration Act into the 21st century by allowing people to update their birth certificates without surgery or other physically invasive medical treatments.

This ongoing silence, on the fundamental human rights of the trans community, is simply not good enough. We really oughta know where the major parties stand on Latham’s anti-trans kids Bill, anti-discrimination reform and birth certificate requirements by now.

We must use whatever influence we have to demand more on these issues from our elected representatives. And by ‘we’ here I’m not talking about trans and gender diverse people, who are already fighting just for the ability to live their lives without discrimination, and to learn without erasure.

It’s time for cisgender members of the LGBT community, as well as our cis-het allies, to step up, and put pressure on Gladys Berejiklian and her Cabinet, and Chris Minns and his Shadow Ministers, to prioritise the dignity and equality of NSW’s trans and nonbinary citizens.

We must do so urgently, too. Because right now, trans and gender diverse people have very few friends in the NSW Legislative Council, and NSW Parliament more broadly.

While there remains a real chance their legal rights will go backwards, rather than forwards, in the near future. Which would be a very jagged little pill to swallow.

*****

Take Action

Following correspondence I sent in February calling on NSW MPs to reject the Education Legislation Amendment (Parental Rights) Bill 2020, today I sent the below short email to the Premier, Opposition Leader, and the Education Minister and Attorney General, plus their shadows. I encourage you to do the same (their contact details are included underneath the text):

Dear Premier

I am writing to urge you to publicly oppose the Education Legislation Amendment (Parental Rights) Bill 2020, legislation which would erase trans and nonbinary students from classrooms and schoolyards across NSW, as well as censor the curriculum and deny them access to affirmation and support from teachers, principals and even school counsellors.

This Bill is the worst legislative attack on LGBTI rights anywhere in Australia this century. It is simply not good enough that, more than 10 months after it was introduced, the people of NSW still don’t know whether you and your Party condemn or condone the harm it will inevitably cause.

Nor is it good enough that trans and gender diverse people in NSW are forced to live with second-rate anti-discrimination and identity documentation laws.

Therefore, I also urge you to publicly commit to amend the Anti-Discrimination Act 1977 to:

  • Remove the unnecessary and confusing definition of ‘recognised transgender person’,
  • Replace the protected attribute of ‘transgender’ with an attribute of ‘gender identity’ and a definition which ensures nonbinary people are protected against discrimination, and
  • Remove the special privileges which allow publicly-funded ‘private educational authorities’, including religious schools, to discriminate against trans and gender diverse students and teachers simply because of who they are.

Finally, I urge you to amend the Births, Deaths and Marriages Registration Act 1995 to allow trans and gender diverse people to self-determine their gender identity without the need for physically invasive medical treatment, such as surgery, as well as to recognise a wider range of gender identities, including nonbinary.

If the NSW Parliament fails to amend these laws, it is highly likely we will soon be the only jurisdiction in Australia which places this unfair and unnecessary barrier in front of its trans and gender diverse citizens. These hurdles must be removed as a matter of priority.

Sincerely

Alastair Lawrie

*****

Premier Gladys Berejiklian webform: https://www.nsw.gov.au/premier-of-nsw/contact-premier

Education Minister Sarah Mitchell webform: https://www.nsw.gov.au/nsw-government/ministers/minister-for-education-and-early-childhood-learning

Attorney General Mark Speakman webform: https://www.nsw.gov.au/nsw-government/contact-a-minister/attorney-general-and-minister-for-prevention-of-domestic-and-sexual-violence

Opposition Leader Chris Minns email: kogarah@parliament.nsw.gov.au

Deputy Opposition Leader and Shadow Minister for Education Prue Car email: londonderry@parliament.nsw.gov.au

Shadow Attorney General Michael Daley email: maroubra@parliament.nsw.gov.au

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Footnotes:

[i] In the 1996 debate, trans women were erroneously described by opponents as ‘transsexual males’, while in the 2021 hearings trans girls were commonly called ‘biological males’ or ‘natal males’. Mark Latham also deliberately used the deadname of a prominent transgender Australian on 20 April.

[ii] The term ‘tranys’ was used by both supporters and opponents of the 1996 legislation, perhaps indicating that this language did not carry the same pejorative connotations it does today. Either way, it was confronting seeing the frequency with which the term was used back then.

[iii] National Party MLC Duncan Gay opposed the 1996 reforms, stating: ‘I am going to be brief in my opposition to this bill. I am amazed about the amount of time spent by honourable members on what I believe is the most stupid and most unnecessary bill to ever come before this Parliament.’

[iv] With Leader of the Opposition in the Legislative Council, John Hannaford, stating: ‘I accept the need to deal with discrimination against members of the transgender community. I acknowledge that violence is committed against such members of the community and also that those members suffer discrimination. It is necessary to address such elements of violence and discrimination.’

[v] Unfortunately, this problem – only protecting trans people with binary gender identities – is shared by the anti-discrimination laws of Queensland, Western Australian and the Northern Territory. For more, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.  

[vi] One of many reasons why the NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in Australia. For more, see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

[vii] Disturbingly, these represent only the most prominent of the problems with trans protections in the NSW Anti-Discrimination Act. One of the provisions inserted in 1996 provided an exception allowing discrimination by superannuation funds:

‘Section 38Q: A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

Interestingly, the then Attorney General, Jeff Shaw, made the following comment about this provision in his Second Reading Speech:

‘Granting legal recognition also has implications for the superannuation sector in terms of differential contributions and benefits. These implications have not yet been fully determined. The legislation therefore provides for an exemption to legal recognition in this area. Nevertheless, I wish to advise the House that the Government is currently examining this matter with a view to possible further amendments at a later date.’

Except, as you’ve probably guessed by now, those changes never happened – and this exception remains, with the exact same wording, today.

[viii] Interestingly, the Births, Deaths and Marriages Registration Act 1995 provisions were amended in 2008, to replace the original terminology of ‘sexual reassignment surgery’ with ‘sexual affirmation procedure’, but the requirement for surgery was not altered.

[ix] Democrat MLC Elisabeth Kirby stated: ‘Although I support the Government’s amendments to the Registration of Births, Deaths and Marriages Act, I request that the Government give serious future consideration to an expansion of the criteria under which a new birth certificate can be obtained’ before highlighting that only a minority of transgender people undergo surgery.

[x] Greens MLC Ian Cohen also expressed his ‘reservations’ about ‘the certificate provisions not including transgender members of our community who, for whatever reasons, decline surgical intervention’ and later that ‘By using medical interventions as the benchmark for altering documents of identity, the legislation leaves out in the cold 80 per cent of the transgender members of our community who do not avail themselves of medical interventions.’ Perhaps with misplaced confidence he subsequently noted that ‘I am certain that with the passage of time this flaw will be recognised and rectified.’ Well, we’re now at 25 years and counting…

A Pride Flag for NSW

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

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

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

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

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

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

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

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

Red: Ban conversion practices

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

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

Amber/Orange: Protect LGBT students & teachers

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

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

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

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

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

Yellow: End coercive intersex surgeries

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

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

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

Green: Improve birth certificate access

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

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

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

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

Blue[ii]: Trans discrimination law reform

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

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

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

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

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

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

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

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

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

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

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

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

‘gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth’.

Lavender/Purple: Bisexual discrimination law reform

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

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

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

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

(a) persons of the same sex; or

(b) persons of a different sex; or

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

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

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

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

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

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

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

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

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Footnotes:

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

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

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

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

Letter to WA Political Parties re Anti-Discrimination and Birth Certificate Reform

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The writs for the Western Australian state election will be issued at 6pm today (3 February 2021). The upcoming poll, on Saturday 13 March, is an opportunity to make long-overdue progress on a range of important policy issues affecting the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

As with elections last year in the Northern Territory, Australian Capital Territory and Queensland, I am writing to political parties contesting the WA election asking for their commitments on LGBTI law reform.

While there are a variety of different policy issues that must be addressed, my letter focuses on two areas where I have the most expertise:

  • Reform of the Equal Opportunity Act 1984 (WA),[i] and
  • Changes to identity documentation for trans and gender diverse people.[ii]

This letter has been sent to the leaders of the WA Labor Party, Liberal Party and National Party, as well as to all MLCs from other parties: The Greens; One Nation; Liberal Democrats; Shooters, Fishers and Farmers; and Western Australia Party. As with previous elections, I will post any responses I receive from these parties below.

*****

Given the upcoming Western Australian state election, I am writing to ask about your Party’s positions on two important issues for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

I do so as a long-term advocate for the LGBTI community, including via my website www.alastairlawrie.net where I focus on anti-discrimination and anti-vilification law reform around Australia, among other topics.

The first issue I would like to ask about is reform of the Equal Opportunity Act 1984 (WA), which is necessary to address its serious shortcomings in relation to discrimination against and vilification of LGBTI people in Western Australia. Specifically:

  1. Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
  2. Will you protect all trans and gender diverse people against discrimination by replacing the current inappropriate, ineffective and outdated protected attribute of discrimination against ‘a gender reassigned person on gender history grounds’ with a protected attribute of ‘gender identity’?
  3. Will you protect LGBT students, teachers and other staff at religious schools against discrimination by removing the special privileges which currently allow them to discriminate?
  4. Will you protect LGBT employees at, and people accessing services from, religious organisations in health, housing and other community services against discrimination by amending religious exceptions generally, based on the best practice approach in Tasmania’s Anti-Discrimination Act 1998?
  5. Will you protect LGBTI people against hate speech by introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics?

The second issue I would like to ask about is access to identity documentation, including birth certificates, for trans and gender diverse people, which is another area where Western Australia’s legislative approach has fallen far behind most other jurisdictions. Specifically:

  1. Will you allow trans and gender diverse people to update their birth certificates and other identity documents without requiring surgery, other medical treatments or counselling?
  2. Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
  3. Will you allow trans and gender diverse people to update their birth certificates and other identity documents by identifying as male, female, non-binary or ‘other, please specify’, in line with recent reforms in both Tasmania and Victoria?

Thank you in advance for your prompt consideration of this request. Please note that any answers provided will be published via my website, to assist LGBTI people in Western Australia make an informed choice on Saturday 13 March.

Please do not hesitate to contact me, at the details provided, should you require clarification of the above.

Sincerely

Alastair Lawrie

*****

Update: 13 February 2021

During the week, I received the first formal Party response to the above correspondence, from the WA Greens. Their commitments are reproduced below:

Dear Alastair

Thank you for your email to WA Greens MPs.

I am pleased to advise that the Greens are committed to removing discrimination on the grounds of gender identity or sexuality from all federal and state laws. We want the process for legal recognition of gender in Western Australia to be simplified and for Western Australian birth certificates to have an X gender marker, in line with most of the rest of Australia.

The Greens (WA) will encourage and support legislation and actions that ensure that intersex and transgender people, without undertaking surgeries, are able to alter their sex on all official documents, consistent with how they live and identify, and irrespective of their marital status.

As the Member for the North Metropolitan Region and Greens (WA) spokesperson I have been a long term advocate in this space. In 2018 I introduced a Private Members Bill into the WA Legislative Council, the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018, seeking to end discrimination against LGBTIQ parents, students and staff by religious schools. Disappointingly, this bill has not received the support necessary from other political parties for it to be passed and to become law.

The Greens will continue to fight to remove all exceptions in the Equal Opportunity Act that permit discrimination against people on the basis of their gender identity and/or sexuality.

If you would like more information, the Greens (WA) Sexuality & LGBTQIA+ Issues and Gender Identity policies provide more information about our party’s commitments in these areas.

The Greens have also proposed a WA Charter of Rights to provide further protections against rights-based infringements including discrimination.

Thank you for your interest and advocacy in this important area.

Kind regards

Alison

Hon Alison Xamon MLC (BA, LLB, Cert IV HS, Cert Adv Arb)

Member for the North Metropolitan Region, Legislative Council, Parliament of Western Australia

*****

Update: 25 February 2021

On Tuesday (23 February 2021), I received the following reply from the Leader of the WA Nationals, Mia Davies, which, as you will see, does not give specific commitments on either LGBTI anti-discrimination law reform or improved access to birth certificates for trans and gender diverse people – other than that Nationals MPs would be granted conscience votes on both issues.

Dear Mr Lawrie

2021 STATE ELECTION: LGBTI LEGISLATIVE REFORM

Thank you for your correspondence dated 3 February 2021. I appreciate your advocacy in relation to LGBTI legislation and the need for reform.

One of the founding principles of The Nationals WA is that regional West Australians deserve access to relevant services and protections against discrimination, regardless of their postcode. As you would be aware the day-to-day issues faced by LGBTI people are often exacerbated by remoteness and isolation from services and support networks.

If legislation to resolve the issues raised was introduced to Parliament, voting on it would be a matter of conscience for Members of The Nationals WA team. I encourage you to send your questions to each local candidate in The Nationals WA team for their individual responses. Their details can be found on our website http://www.nationalswa.com/

Although not specific to LGBTI individuals and families, The Nationals WA have made the following election commitments to date which may be of interest:

-$15 million for an office of the State Rural Health Commissioner, to complement the work done at a national level. This office would be independent of Government, providing advice and reporting on rural and regional health concerns.

-$140 million for regional mental health services, including demographically targeted funding for regional community support hours.

Further details on these and other election commitments can be found on our website.

Yours sincerely

Hon Mia Davies MLA

LEADER

Footnotes:

[i] For example, see What’s wrong with Western Australia’s Equal Opportunity Act 1984?  and A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] For example, see Identity, Not Surgery and Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates.