Sydney: World Pride and Legal Prejudice

Posted on February 5, 2023 by Alastair Lawrie

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 November 7, 2021 by Alastair Lawrie

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:

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

(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

(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

(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]

Access to amended identity documentation must not depend on surgery or other medical treatments
Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
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

(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

Posted on September 24, 2021 by Alastair Lawrie

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?

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

Posted on June 14, 2021 by Alastair Lawrie

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 21^st 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

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

Posted on March 26, 2021 by Alastair Lawrie

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

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

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

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

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

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

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

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

Red: Ban conversion practices

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

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

Amber/Orange: Protect LGBT students & teachers

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

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

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

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

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

Yellow: End coercive intersex surgeries

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

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

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

Green: Improve birth certificate access

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

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

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

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

Blue^[ii]: Trans discrimination law reform

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

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

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

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

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

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

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

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

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

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

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

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

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

Lavender/Purple: Bisexual discrimination law reform

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

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

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

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

(a) persons of the same sex; or

(b) persons of a different sex; or

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

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

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

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

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

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

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

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].

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

Posted on February 3, 2021 by Alastair Lawrie

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:

Will you protect intersex people against discrimination by introducing a new protected attribute of ‘sex characteristics’?
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’?
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?
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?
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:

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?
Will you allow trans and gender diverse people to update their birth certificates and other identity documents based on self-identification alone?
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.

LGBTIQ Law Reform Priorities for 2021

Posted on December 21, 2020 by Alastair Lawrie

ANU Gender Identity + Sexuality Law Moot Webinar Presentation

In October 2020, I was invited to be a judge for the round robin stage of the inaugural ANU Gender Identity + Sexuality Law Moot. In the lead-up to the moot itself, I participated in a webinar for participants about the state of LGBTIQ law reform in Australia, including being asked to address the following two questions:

What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion? and

How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

While the panel ultimately adopted a more ‘free-wheeling’ approach to its discussion, I prepared the below, more detailed responses to these questions. Now that, at the end of a busy year, I’ve finally had the chance to tidy them up, I thought they might be worth sharing. I’m also keen to hear other people’s views, including on what you think the most significant issues that need legal reform are today – please leave your comments below.

**********

Question 1. What are, in your view, the most significant issues that need legal reform with respect to LGBTIQ rights and inclusion?

Despite what many people might assume – and what far too many members of our political and media classes seem to believe following the recognition of LGBTI marriage in 2017 – there remain a large number of outstanding legal reforms necessary for LGBTIQ rights and inclusion in 2020 [and I guess we can say 2021 now, too]. The following are my top three:

Ending coercive medical interventions on children born with intersex variations of sex characteristics

Intersex people, and especially children born with intersex variations of sex characteristics, currently experience the worst human rights abuses of any group within the Australian LGBTIQ community.

Intersex people are born with physical sex characteristics that do not neatly fit medical norms for female or male bodies. Infants, children, adolescents and adults born with intersex variations risk or suffer forced and coercive medical interventions, designed to make their bodies more typically female or male. These interventions are not medically necessary, but instead rely on social or cultural rationales.^[i]

The consequences of early and unnecessary deferrable interventions can include pain, trauma, shame, loss of sexual function and sensation, urinary incontinence and urgency, a need for ongoing medical treatment or repeat surgeries, experiences of violation and sexual assault, reinforcement of incorrect sex assignment and loss of choice.

These coercive medical interventions breach a large number of human rights principles, including the right to bodily integrity. They also adversely impact on rights to liberty, security, non-discrimination, privacy and freedom from torture, experimentation and harmful practices.

Unfortunately, coercive medical interventions on intersex people, and especially children born with intersex variations, have not been legally prohibited in any Australian jurisdiction.

Instead, they are self-governed by clinical guidelines which support coercive interventions despite a lack of supporting medical evidence. And they are enabled by a legal system, including family law, which have permitted coercive interventions on the basis of (often poorly-informed) parental consent. The most infamous decision was the 2016 Family Court decision of Re: Carla, although it was merely one of a long line to contravene the human rights of intersex children.

In terms of law reform, there has been disappointingly little progress in this area. This month (October 2020) marks seven years since a bipartisan Senate Committee recommended new guidelines be developed that ‘should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (among other recommendations).^[ii]

Unfortunately, the Abbott, Turnbull and Morrison Governments have effectively done nothing to implement even these modest proposals.

More encouragingly, in June 2020 the Tasmanian Law Reform Institute released the final report of its inquiry into the legal recognition of sex and gender. It made a number of recommendations about intersex law reform, including:

Recommendation 7

The Criminal Code should be reformed to criminalise non-consensual medical interventions in the following terms:

178F Unnecessary medical intervention to change the sex characteristics of children.

(1) Any person who performs a surgical, hormonal or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless:

(a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or

(b) it takes place with the informed consent of the child.

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

Recommendation 8 of that report also recommended that:

‘intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed.’

The Tasmanian Government is now considering these recommendations, meaning it is possible it will become the first Australian jurisdiction to criminalise coercive medical interventions on children born with intersex variations.

Before moving on, I should note the Australian Human Rights Commission has also been undertaking a long-running project on these issues.^[iii] I understand it is (finally) nearing completion, and my personal hope is it recommends all Australian jurisdictions criminalise these human rights abuses.

2. Trans and gender diverse birth certificate reform

Trans and gender diverse people should have access to birth certificates, and other identity documentation, based solely on self-identification, and without medical approval (because gender identity is exactly that, identity, and not a ‘medical’ issue). Currently only one Australian jurisdiction has completely achieved this model: Tasmania, following its historic 2019 birth certificate reforms.

Victoria is a close second, also following changes in 2019, which removed the involvement of medical gatekeepers, although unfortunately it does not fully realise self-identification, because applications must be accompanied by a statement from someone who has known the applicant for at least 12 months and ‘supports’ the application.

Three other jurisdictions – South Australia, the ACT and the Northern Territory – have removed requirements for surgery or other physically invasive treatments. However, they still adopt a medical model, because they require engagement with psychologists or counsellors prior to approval. Ultimately, these laws will need to be updated.

However, the largest problems are in the other three states. NSW and Queensland still require surgery in order to access new identity documents, which is completely inappropriate not just because it unnecessarily medicalises gender identity, but also because not all trans and gender diverse people want surgery (or can afford it).^[iv]

Western Australia’s legislation also requires surgery, although thanks to a favourable High Court decision, this has been interpreted to ‘only’ require some forms of physical treatment (such as hormone therapy).

Nevertheless, all three states – NSW, Queensland and Western Australia – must urgently amend their births, deaths and marriages laws to support self-identification for their trans and gender diverse residents [for more on this topic, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates].

3. LGBTIQ refugees in Papua New Guinea and Nauru

One LGBTIQ human rights abuse that is not technically in Australia, but is perpetrated by Australia, is the detention, processing and resettlement of LGBTIQ refugees and people seeking asylum in countries that criminalise them.

In particular, there remain LGBTIQ refugees and people seeking asylum who are trapped in Papua New Guinea – because the Australia Government put them there – a country which retains a maximum penalty of up to 14 years imprisonment for male same-sex activity.

And, even though Nauru decriminalised homosexuality in 2016, that does not necessarily translate into it being a safe environment for the LGBTIQ refugees and people seeking asylum which the Australian Government imprisoned there.

Of course, for anyone interested in international human rights law, all offshore detention, processing and resettlement is abhorrent, and should be ended for all refugees irrespective of their sexual orientation, gender identity or sex characteristics (or other attributes).

However, we must not overlook the fact Australia’s immigration framework has a particularly awful impact on people fleeing persecution on the basis of being lesbian, gay, bisexual, transgender, intersex or queer. They should be brought to Australia immediately.^[v]

Anti-Discrimination Reform

While there is no individual LGBTI anti-discrimination law reform issue which is as important as the above three topics, I would argue that addressing our inadequate, incomplete and inconsistent LGBTI anti-discrimination and vilification framework overall must also be a high priority. Specifically, the majority of Commonwealth, state and territory anti-discrimination laws should be updated across three main areas:

Ensuring everyone is protected against discrimination. Most state and territory laws currently exclude at least some parts of our community. The NSW Anti-Discrimination Act 1977 is the worst – it doesn’t even protect bisexuals.^[vi] While NSW, Victoria, Queensland, Western Australia and the Northern Territory don’t cover people with non-binary gender identities – and the same jurisdictions exclude intersex people as well.

Repealing the special privileges enjoyed by religious organisations. Loopholes allow faith bodies to discriminate against LGBT people, in employment and against people accessing services, even when they are delivering public services using public funding. Nearly all Australian anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth), need to be reformed – although the Tasmanian Anti-Discrimination Act 1998 provides a template for how this can be done, by permitting religious organisations to preference people from their own faith (in limited circumstances), while not allowing discrimination on the basis of other attributes like sexual orientation or gender identity.^[vii]

Obviously, the religious exceptions which have received the most public debate, at least in the past few years, are those allowing religious schools to discriminate against LGBT students, teachers and other staff. Positively, four jurisdictions (Tasmania, Queensland, the ACT and Northern Territory) have already legislated to cover LGBT students, although only two (Tasmania and the ACT) fully protect LGBT teachers and other staff. On the negative side, Scott Morrison’s Broken Promise to Protect LGBT Students is Now Two Years Old, and there’s little chance he will act on it for several years to come either.

Introducing prohibitions on anti-LGBTI vilification. There is currently no prohibition on anti-LGBTI vilification under Commonwealth law. Although they are by no means alone – currently Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification. Of those that do (NSW, Queensland, Tasmania and the ACT), only Tasmania and the ACT protect all sections of the LGBTI community. Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and harmful, as racism, I firmly believe anti-LGBTI vilification should be prohibited on the same basis as racial vilification (equivalent to section 18C of the Racial Discrimination Act 1975 (Cth)).

[For more on the overall state of LGBTI anti-discrimination and vilification law, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.]

Other LGBTIQ Law Reform Issues

There are a range of other LGBTIQ law reform issues which still need to be addressed, including:

Sexual orientation and gender identity conversion practices (sometimes called ex-gay or ex-trans therapy) should be outlawed across Australia. The Queensland Government recently introduced the first ban on these practices – although disappointingly it only applied in health care settings, and not in the religious environments where most anti-gay and anti-trans conversion practices occur. The ACT Government followed shortly thereafter, and their legislation has been welcomed by survivor groups because it covers both health care and religious settings. I understand that there are also moves to outlaw these practices in Victoria, Tasmania and South Australia – although sadly not in my adopted home state of NSW [NB Since the webinar, Victoria has introduced their own Bill to ban conversion practices, which appears to be stronger than both Queensland and the ACT, while the Tasmanian Law Reform Institute has released an Issues Paper on ‘Sexual Orientation and Gender Identity Conversion Practices’, with submissions due 7 January 2021].

South Australia still needs to abolish the gay panic defence (or homosexual advance defence). Thankfully, after much prompting, the South Australian Government has finally released draft legislation that does just that, for public consultation. Hopefully it is finally removed from the statute books later this year or in early 2021. [NB South Australian Parliament passed legislation finally abolishing the gay panic defence on 1 December 2020].

Expungement regimes – which allow for historical convictions for same-sex sexual activity to be expunged from a person’s criminal record – should also be strengthened. In particular, there is a serious limitation in the Queensland scheme, which does not allow gay, bisexual and other men who have sex with men who were convicted as a result of the unequal age of consent for anal intercourse between 1991 and 2016 to have their records expunged,^[viii] and

The Marriage Act 1961 (Cth) needs to be amended to remove the unjustified special privileges that were introduced for existing civil celebrants, and religious organisations, as part of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Note that I usually do not refer to that legislation as providing ‘marriage equality’ as a result of these exceptions, because they mean LGBTI couples marrying now can be discriminated against in ways that divorced people remarrying before 2017 could not. We can get married, but it is still not equal.^[ix]

Protecting Existing Rights

Some people take the quote ‘the arc of the moral universe is long, but it bends towards justice’ a little too literally, and consequently fail to appreciate LGBTIQ rights can go backwards. Something which has happened multiple times in the past decade, including the Newman LNP Government in Queensland winding back civil partnership laws passed by the Bligh Labor Government.

In the area of anti-discrimination, we should also remember the Baillieu Coalition Government in Victoria undid the introduction of a modest ‘inherent requirements’ test for religious exceptions passed by the Brumby Labor Government in 2010 – before they had even commenced. While the Hodgman Liberal Government tried multiple times to undermine vilification protections for LGBTI Tasmanians (and other groups) as long as that vilification was religiously-motivated (although thankfully those efforts failed).

There are currently three major efforts to undermine LGBTIQ rights:

The Commonwealth Government’s proposed Religious Discrimination Bill, of which we have seen two Exposure Drafts and was due to be introduced in March 2020 but has been delayed because of the coronavirus pandemic. This legislation would:

Make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ LGBTI Australians
Make it easier for health practitioners to refuse to provide services to LGBTI patients
Make it easier for religious organisations to discriminate against others
Make it more difficult for big business to promote diversity and inclusion
Create a Religious Freedom Commissioner at the Australian Human Rights Commission (when we still don’t have a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics)
Entrench unjustified religious exceptions in the Marriage Act 1961 (Cth), and
Explicitly protect charities advocating against LGBTI relationship recognition in the Charities Act 2013 (Cth), despite it being completely unnecessary.

[For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.]

The Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW, which, similar to the Commonwealth Religious Discrimination Bill, seeks to privilege the rights of religious individuals and organisations over the rights of others, including the right of LGBTI people in NSW to be protected against discrimination [since the webinar, I had this opinion piece published in the Sydney Morning Herald, outlining just one of the many serious problems created by the NSW ‘Religious Freedoms’ Bill], and

The Mark Latham/One Nation Education Legislation Amendment (Parental Rights) Bill 2020, also in NSW. This legislation does (at least) three awful things:

Prohibiting the teaching of ‘gender fluidity’ – where teaching includes anything to do with a school (including counselling) by anyone connected to a school (including volunteers), and ‘gender fluidity’ means acknowledging that gender identity can be different to biological sex at birth. In effect, it will mean erasing trans and gender diverse students, as well as teachers, in schools across NSW
Introducing a UK section 28-style law against ‘promotion’ of ideological views about sexuality and gender identity – which, just like section 28 did there, will impose a silence on LGBT students struggling with invisibility at the most vulnerable point in their lives, and
Enacting an erroneous and stigmatising definition of intersex in NSW law for the first time (‘disorders of sexual differentiation’).

[For more, see I Stand with Trans Kids, and Against Mark Latham.]

Of course, ordinarily, we wouldn’t be too concerned about legislation being proposed by fringe extremists in the NSW Legislative Council. However, the NSW Government and Opposition have both supported both One Nation Bills being referred to Committee for inquiry – with the anti-trans kids inquiry chaired by Mark Latham himself. Which means we must resist the laws themselves, as well as fighting against toxic debate surrounding them which has the potential to harm vulnerable younger members of our community, and especially trans and gender diverse kids.

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Question 2. How can we ensure that workplaces are inclusive and safe for people from all backgrounds but in particular for the LGBTIQ community?

My answer to this will (thankfully) be significantly shorter than for the previous question, in part because we’ve already discussed some of the reforms that are needed, especially in terms of anti-discrimination law reform, such as repealing the special privileges that allow religious organisations to discriminate against LGBT employees.

This includes amending the Sex Discrimination Act 1984 (Cth) to protect LGBT teachers in religious schools, as well as reforms in the other jurisdictions where LGBT school staff are not fully protected (all states and territories bar Tasmania and the ACT).^[x]

It also means ensuring LGBT employees in Government-funded aged care services operated by religious organisations are protected (where people accessing these services are currently covered under the SDA, but staff in those same facilities are not). There are several reasons for this, including because it is unfair on employees:

‘People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.’^[xi]

It is also unfair on people accessing these services, who ‘have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.’^[xii]

The same reasons also apply in terms of fighting against the Commonwealth Government’s proposed Religious Discrimination Bill, especially in the era of coronavirus. That’s because the 2^nd Exposure Draft Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified:

‘Surely, that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.’

Likewise, the proposed Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified. As I wrote earlier this year: ‘As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills’.

[Both quotes taken from my March 2020 article ‘Coronavirus and the Religious Discrimination Bill’ which I think holds up pretty well, 9 months later, as a strong argument against the RDB when the Morrison Government inevitably brings it back it in the first half of 2021.]

But repealing religious exceptions is not the only law reform needed to make workplaces inclusive and safe for people from all backgrounds, and in particular for the LGBTIQ community.

One specific reform that should be introduced as a matter of priority are amendments to the Fair Work Act 2009 (Cth) to ensure it treats trans, gender diverse and intersex employees exactly the same as lesbian, gay and bisexual ones.

Currently, the adverse action protections in section 351(1), and unlawful termination protections in section 772(1)(f), of that Act cover sexual orientation, but do not explicitly include gender identity or sex characteristics.^[xiii]

Unfortunately, despite this issue being raised repeatedly with the Turnbull and Morrison Governments, they do not appear to be in any hurry to remedy this omission.

A broader structural reform to anti-discrimination law is ensuring it is able to deal with real-life people, who are complex and have multi-faceted characteristics (covering race, sex, age, disability, sexual orientation, gender identity, sex characteristics and more attributes besides).

Often, it is impossible for people to know whether they have been discriminated against because of a particular protected attribute, or a combination of attributes. Any definition of discrimination must be able to deal with this complexity, and uncertainty. In my perspective, one of the best approaches is found in section 8 of the ACT Discrimination Act 1991:

‘Meaning of discrimination

(1) For this Act, discrimination occurs when a person discriminates either directly, or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.’

One final point that should be mentioned, if we are genuine about making workplaces inclusive and safe for people from all backgrounds, is that there is a gap in terms of anti-discrimination protections around religious belief, and lack of belief.

It is unacceptable that the Commonwealth, NSW and South Australian anti-discrimination regimes do not protect people of faith, and no faith, against discrimination – this is something that should be addressed.

But it must not be addressed in the way proposed by the Commonwealth Religious Discrimination Bill, or the Mark Latham/One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 in NSW. Because they are just as unacceptable.

People of faith, and no faith, should be protected against discrimination on exactly the same terms as everyone else, including to the same standard as sexual orientation, gender identity and sex characteristics.

People of faith, and especially faith-run organisations, must not be given new special privileges to discriminate against others, including people of minority faiths or no faith, as well as women, LGBTIQ people, single parents, divorced people and people in de facto relationships, people with disability and plenty more.

Doing this one simple thing – protecting everyone against discrimination, equally – would help create an Australia where all people are accepted for who they are. And it would be a great leap forward for LGBTIQ people of faith too, many of whom experience discrimination on the basis of both sexual orientation/gender identity/sex characteristics and faith.

Footnotes:

^[i] The information in this, and following, paragraph(s) is summarised from the website of Intersex Human Rights Australia. Please check them out here.

^[ii] I made a submission to this inquiry way back in July 2013.

^[iii] Please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

^[iv] This issue – financial barriers to trans healthcare – is something we don’t discuss enough. For more, see: Trans out-of-pocket medical costs.

^[v] For more, see: Australia’s (Mis)Treatment of LGBTI Refugees.

^[vi] For more, see: Did You Know? The NSW Anti-Discrimination Act Doesn’t Protect Bisexuals Against Discrimination.

^[vii] For more, see: What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

^[viii] An issue I raised in my Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017.

^[ix] For more, see: No, We Don’t Have Marriage Equality Yet.

^[x] For more, see: Back to School, Back to Discrimination for LGBT Students and Teachers.

^[xi] From my Submission to [the] Royal Commission into Aged Care.

^[xii] Ibid.

^[xiii] For more, see: Unfairness in the Fair Work Act.

Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

Posted on May 2, 2020 by Alastair Lawrie

This week marked an important milestone on the long march to trans and gender diverse equality in Australia. From 1 May 2020, trans and gender diverse people in Victoria can update their birth certificate and other identity documentation without requiring surgery.

Unfortunately, there are still two Australian jurisdictions that continue to impose this unjustified and unnecessary barrier, as well as a third where the laws also require urgent amendment.

[NB The following is up to date as at 23 March 2023]

New South Wales

Under section 32B of the Births, Deaths and Marriages Registration Act 1995, in order to apply to alter the register to record a change of sex, a person must first have ‘undergone a sex affirmation procedure’, which is defined in section 32A as:

‘a surgical procedure involving the alteration of a person’s reproductive organs carried out:

a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

b) to correct or eliminate ambiguities relating to the sex of the person.’

With the NSW election to be held on Saturday (25 March), neither the Perrottet Liberal/National Government nor the Minns Labor Opposition have given any clear commitments to amend these laws. As we will see below, that will soon leave NSW as the only place left which imposes a requirement for genital surgery on trans people who simply want identity documentation which reflects who they are.

Queensland

Section 22 of the Births, Deaths and Marriages Registration Act 2003 provides that ‘the reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of birth.’

This requirement is obviously the same as NSW’s – for the time being.

However, in late 2022, the Palaszczuk Labor Government introduced the Births, Deaths and Marriages Bill 2022, which would replace the requirement with a scheme based on Victoria’s (discussed below) which removes any requirement for surgery, or other medical approval (but still falls short of the best practice approach in Tasmania, also discussed later in this article).

Western Australia

The situation is only slightly better in the nation’s West, where section 14 the Gender Reassignment Act 2000 allows people to apply for gender recognition certificates where that person ‘has undergone a reassignment procedure’. Section 3 defines ‘reassignment procedure’ as:

‘a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.’

Fortunately, following a decision of the High Court in AB v Western Australia; AH v Western Australia [2011] HCA 42 6 October 2011, this has been interpreted such that genital surgery is not required. However, physical medical treatment, such as hormone therapy, remains a pre-requisite to access a new birth certificate in Western Australia.

These issues were examined in the Law Reform Commission of Western Australia’s 2018 Report: 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, which recommended that applications for change of gender involve a simple administrative process, including a statutory declaration, with no requirement for surgical or other medical treatment.

After a long delay, the WA McGowan Government promised in late 2022 to abolish the Gender Recognition Board. It is expected that they too will introduced similar reforms to the existing Victorian approach.

South Australia, Australian Capital Territory and Northern Territory

These three jurisdictions have abolished the requirement for trans and gender diverse people to have surgery, or other physical medical interventions, in order to access updated birth certificates and identity documentation.

However, they do still require doctors or other health practitioners, such as counsellors or psychologists, to approve such applications, which remains inappropriate medicalisation of people’s gender identities, that should instead be based on self-identification.

Section 29L of South Australia’s Births, Deaths and Marriages Registration Act 1996 provides that ‘if the Registrar is satisfied that the applicant has undertaken a sufficient amount of appropriate clinical treatment in relation to their sex or gender identity, the Registrar may make an entry about the change of the person’s sex or gender identity in the Register…’, with section 29H clarifying that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

Likewise, section 24 of the Australian Capital Territory’s Births, Deaths and Marriages Registration 1997 provides that a person applying to have the register amended to reflect a change of sex must have ‘received appropriate clinical treatment for alteration of the person’s sex’. Clinical treatment is not further defined, meaning it does not explicitly require surgical intervention.

The Northern Territory has also adopted a similar approach, with section 28B of their Births, Deaths and Marriages Registration Act providing that trans and gender diverse people can update their birth certificates if they can show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’.

It is positive that each of South Australia, the ACT and NT have removed the requirement for surgery or other physical medical interventions. However, in order to reflect the self-determination of trans and gender diverse people, they should still amend their laws to remove the role of health practitioners as ‘gate-keepers’ of their identity.

Victoria

As indicated above, Victoria’s new birth certificate reforms mean trans and gender diverse Victorians can update their identity documentation without having surgery or other physical medical interventions.

Importantly, these changes, which were introduced by the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), also mean that trans and gender diverse people do not need approval from doctors or other health practitioners, such as counsellors or psychologists. Their role as ‘gate-keepers’ is over.

However, there is one requirement which fails the principle of complete ‘self-identification’. That’s because section 30A of the Victorian Births, Deaths and Marriages Registration Act 1996 requires adults to submit a ‘supporting statement’ made by a person who is aged 18 years or over and who has known the applicant for at least 12 months and state that the person making the supporting statement:

believes that the applicant makes the application to alter the record of their sex in good faith, and
supports the application.

This second requirement in particular (that another person must ‘support’ the application of a trans or gender diverse person for a new birth certificate) is unnecessary, and is the reason why Victoria’s new scheme, while a massive improvement from the previous regime, falls short of Australian best practice.

Ideally, access to accurate identity documentation for trans and gender diverse people should not depend on whether another person ‘supports’ their application.

Tasmania

That honour belongs to Tasmania’s Births, Deaths and Marriages Registration Act 1999. Following amendments earlier last year, it allows trans and gender diverse Tasmanians (aged over 16) to self-determine their own gender identity.

Without the need for surgery or other physical medical interventions. Without the need for medical approval. And based solely on self-identification.

When NSW, Queensland and Western Australia finally bring their own birth certificate laws into the 21^st century, it is the Births, Deaths and Marriages Registration Act 1999 (Tas) they should be emulating.

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This article is part of a series. Find other ‘Did You Know?’ posts here.

An LGBTI Agenda for NSW

Posted on March 23, 2017 by Alastair Lawrie

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

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The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

Include bisexual people in anti-discrimination laws

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

Include intersex people in anti-discrimination laws

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1984 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

Remove excessive and unjustified religious exceptions

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

Reform anti-vilification offences

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

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The following are four equally important law reform and policy issues for the state:

Reform access to identity documentation for trans people

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

Ban involuntary sterilisation of intersex infants

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

Ban gay conversion therapy

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

Improve the Relationship Register

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

However, there are two main problems with the ‘register’ as it currently stands:

Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

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The following two issues relate to the need to ensure education is LGBTI-inclusive:

Expand the Safe Schools program

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

Ensure the PDHPE curriculum includes LGBTI content

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

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The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

Appoint an LGBTI Commissioner

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

Create a Pride Centre

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1^st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

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This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

Footnotes:

[i] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977.

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.

alastairlawrie

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

Tag Archives: trans birth certificates

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