Ending Forced Trans Divorce: Mission Accomplished

It is now 18 months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.

 

Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.

 

At the end of this 12-month period, on 9 December 2018, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 was repealed:

 

Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

 

So how did the states and territories respond?

 

First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:

 

The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and

 

South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’

 

There are four other jurisdictions that passed legislation within the 12 month time-frame granted to repeal forced trans divorce:

 

Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and

 

New South Wales, which passed the Miscellaneous Amendment (Marriages) Act 2018 in June. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.

 

Queensland, which also passed its Births, Deaths and Marriages Registration Amendment Act 2018 in June, amending the requirement in section 22 of the original Act that a person be unmarried for their sexual reassignment to be noted on the Register, and

 

The Northern Territory, which passed the Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 in late November, taking effect on 6 December with only three days to spare.

 

Which means that, at the time of the December 2018 deadline, two out of eight Australian states and territories had failed to repeal forced trans divorce:

 

Western Australia, where the Gender Reassignment Amendment Bill 2018 passed the Legislative Assembly in November 2018, but was not passed by the Legislative Council before the end of 2018. Update: The Legislative Council passed the Bill on Tuesday 12 February 2019, and

 

Tasmania, where the Justice and Related Legislation (Marriage Amendments) Bill 2018 – which makes a range of important amendments beyond simply repealing forced trans divorce – passed the Legislative Assembly in November 2018 despite Government opposition, and awaits consideration by their Legislative Council in March this year. Update: This Bill was passed by the Legislative Council in April 2019, and took effect in May 2019.

 

Of course, it is disappointing that it took another 17 months for trans and gender diverse Australians to gain access to marriage on the same terms of lesbian, gay and bisexual people.

 

But it is still worthy of celebration that the abhorrent legal discrimination that was forced trans divorce has finally been made history.

 

Finally, this doesn’t mean the struggle for LGBTI equality in Australia is over – there is plenty left to do as part of the LGBTI agenda (see here).

 

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* This article was originally published in June 2018 as ‘Ending Forced Trans Divorce: Mission Half Accomplished’.

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 6: Discrimination in Health, Community Services or Aged Care

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

 

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

 

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

 

The responses reveal a disturbing pattern of discrimination across these areas, with many LGBTIQ Australians denied equal access to services simply because of their sexual orientation, gender identity or intersex status.

 

The question about whether any of this discrimination occurred in relation to religious organisations is important because of the existence of ‘special rights’ to discriminate for these bodies in most states and territories[ii], leaving LGBTI people in these circumstances without any legal redress.

 

I also encourage you to read the examples provided in response to question four, which reveal some of the different types of discrimination that LGBTIQ people have encountered in health, community services or aged care.

 

 

The State of Homophobia, Biphobia & Transphobia-11

 

Question 1: Have you ever experienced discrimination because of your sexual orientation, gender identity or intersex status in relation to health, community services or aged care

 

Question 2: Has one or more instances of this discrimination (in health, community services or aged care) occurred in the past 12 months?

 

&

 

Question 3: Did any of this discrimination (in health, community services or aged care) occur in relation to a religious organisation?

 

Of the 1,611 people who answered the first question, 345 – or 21% – said they had experienced discrimination in one of these areas at some point in their lives.

 

Disturbingly, 189 survey respondents[iii] reported experiencing anti-LGBTIQ discrimination in health, community services or aged care in the past 12 months alone. In other words, more than half of those who had experienced discrimination in these areas reported at least one instance of this mistreatment just in 2016 – that is simply shocking.

 

The proportion reporting discrimination by religious organisations was 3.7%[iv]. This is thankfully lower than the rates reported for discrimination by religious organisations in education (Survey Results, Part 4) and employment (Survey Results, Part 5), although this nevertheless represents roughly 1 in 25 LGBTI people exposed without adequate protections from anti-discrimination schemes.

 

LGBTIQ Status

 

There were some significant differences in reported discrimination in health, community services and aged care between lesbian, gay, bisexual, transgender, intersex and queer survey respondents:

 

Lesbian

 

  • 26.5%[v] reported discrimination in these areas at some point
  • 14.5%[vi] experienced at least one instance in the last 12 months
  • 3.5%[vii] experienced discrimination by a religious organisation

 

Gay

 

  • 19.8%[viii] reported discrimination in these areas at some point
  • 9.9%[ix] experienced at least one instance in the last 12 months
  • 2.7%[x] experienced discrimination by a religious organisation

 

Bisexual

 

  • 16.1%[xi] reported discrimination in these areas at some point
  • 8.7%[xii] experienced at least one instance in the last 12 months
  • 4.7%[xiii] experienced discrimination by a religious organisation

 

Transgender

 

  • 35.3%[xiv] reported discrimination in these areas at some point
  • 24.9%[xv] experienced at least one instance in the last 12 months
  • 3.8%[xvi] experienced discrimination by a religious organisation

 

Intersex

 

  • 40%[xvii] reported discrimination in these areas at some point
  • 13.3%[xviii] experienced at least one instance in the last 12 months
  • 6.7%[xix] experienced discrimination by a religious organisation

 

Queer

 

  • 29.6%[xx] reported discrimination in these areas at some point
  • 19.2%[xxi] experienced at least one instance in the last 12 months
  • 4.6%[xxii] experienced discrimination by a religious organisation

 

LGBTIQ Category Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
Lesbian 26.5 14.5 3.5
Gay 19.8 9.9 2.7
Bisexual 16.1 8.7 4.7
Transgender 35.3 24.9 3.8
Intersex 40 13.3 6.7
Queer 29.6 19.2 4.6

 

The highest rate for lifetime discrimination was from intersex respondents, although the small sample size for that group (n=15) means this figure should be treated with some caution. It is also interesting that intersex people reported average rates of recent discrimination in these areas.

 

Of the other groups, gay and particularly bisexual respondents reported lower rates of both lifetime, and recent, discrimination in health, community services and aged care than other groups.

 

In contrast to earlier survey results, lesbians reported higher rates of discrimination on both measures. One possible explanation is greater involvement, and therefore potential exposure to discrimination in, family-related health and community services.

 

Once again, higher rates of discrimination, and especially recent mistreatment, were reported by transgender and, to a slightly lesser extent, queer survey respondents.

 

It is particularly disturbing that one in five queer respondents, and fully one quarter of trans people, experienced discrimination in these areas in the past 12 months alone.

 

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

 

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

 

Trans and gay: 40.4%[xxiv] ever, and 28.1% in the last 12 months

 

Trans and bisexual: 26.7%[xxv] ever, and 16.7% in the last 12 months, and

 

Trans and queer: 40.1%[xxvi] ever, and 32.2% in the last 12 months.

 

These groups were largely consistent, although trans and bi respondents reported lower rates on both measures, while trans and queer respondents were more likely to experience recent discrimination (at almost 1 in 3 people overall).

 

Finally, there is little that stands out in the reported rates of discrimination by religious organisations in these areas, with the range from 2.7% (gay) to 6.7% (intersex).

 

Aboriginal and Torres Strait Islander People

 

The rates of discrimination for Aboriginal and/or Torres Strait Islander LGBTIQ people were higher for both lifetime discrimination, and especially for recent discrimination, than for their non-Indigenous counterparts.

 

On the other hand, Aboriginal and/or Torres Strait Islander LGBTIQ people reported lower rates of discrimination by religious organisations in health, community services or aged care. The full figures are as follows:

 

  • 24.6%[xxvii] reported discrimination in these areas at some point (compared to 21.3% of non-Indigenous people)
  • 17.5%[xxviii] experienced at least one instance in the past 12 months (compared to 11.5% of non-Indigenous people) and
  • 1.8%[xxix] experienced discrimination by a religious organisation (compared to 3.7% of non-Indigenous people).

 

  Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
Aboriginal and/or Torres Strait Islander 24.6 17.5 1.8
Non-Indigenous 21.3 11.5 3.7

 

Age

 

Aged 24 and under

 

  • 15.7%[xxx] reported discrimination in these areas at some point
  • 10.8%[xxxi] experienced at least one instance in the past 12 months
  • 3.3%[xxxii] experienced discrimination by a religious organisation

 

25 to 44

 

  • 31.1%[xxxiii] reported discrimination in these areas at some point
  • 15.8%[xxxiv] experienced at least one instance in the past 12 months
  • 3.9%[xxxv] experienced discrimination by a religious organisation

 

45 to 64

 

  • 23.7%[xxxvi] reported discrimination in these areas at some point
  • 9.1%[xxxvii] experienced at least one instance in the past 12 months
  • 4%[xxxviii] experienced discrimination by a religious organisation

 

65 and over

 

  • 25.8%[xxxix] reported discrimination in these areas at some point
  • 9.7%[xl] experienced any instance in the past 12 months
  • 9.7%[xli] reported discrimination by a religious organisation

 

Age cohort Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
24 and under 15.7 10.8 3.3
25 to 44 31.1 15.8 3.9
45 to 64 23.7 9.1 4
65 and over 25.8 9.7 9.7

 

Given their lesser years of life experience, it is perhaps unsurprising that young people experienced lower levels of lifetime discrimination in these areas. Although the fact that more than 1 in 10 LGBTIQ people aged 24 or under reported homophobic, biphobic, transphobic or intersexphobic discrimination in health or community services over the past 12 months is alarming.

 

What is perhaps most surprising is that people aged 25 to 44 were most likely to report both lifetime discrimination in these areas (with almost a third of respondents affected), as well as anti-LGBTIQ discrimination in the past 12 months (at almost 1 in every 6 respondents).

 

Meanwhile, the highest rate of reported discrimination by religious organisations was from LGBTIQ people aged 65 and over – which is possibly explained by recent interactions with religious-operated aged care services.

 

State or Territory of Residence

 

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

 

New South Wales

 

  • 21.4%[xlii] reported discrimination in these areas at some point
  • 10.9%[xliii] experienced at least one instance in the last 12 months
  • 2.7%[xliv] experienced discrimination by a religious organisation

 

Victoria

 

  • 22.8%[xlv] reported discrimination in these areas at some point
  • 12.4%[xlvi] experienced at least one instance in the last 12 months
  • 4%[xlvii] experienced discrimination by a religious organisation

 

Queensland

 

  • 22%[xlviii] reported discrimination in these areas at some point
  • 11.4%[xlix] experienced at least one instance in the last 12 months
  • 6.1%[l] experienced discrimination by a religious organisation

 

Western Australia

 

  • 22.1%[li] reported discrimination in these areas at some point
  • 12.8%[lii] experienced at least one instance in the last 12 months
  • 2.7%[liii] experienced discrimination by a religious organisation

 

South Australia

 

  • 19.5%[liv] reported discrimination in these areas at some point
  • 14.3%[lv] experienced at least one instance in the last 12 months
  • 3%[lvi] experienced discrimination by a religious organisation

 

Tasmania

 

  • 16%[lvii] reported discrimination in these areas at some point
  • 10.4%[lviii] experienced at least one instance in the last 12 months
  • 1.9%[lix] experienced discrimination by a religious organisation

 

Australian Capital Territory

 

  • 23.2%[lx] reported discrimination in these areas at some point
  • 10.7%[lxi] experienced at least one instance in the last 12 months
  • 7.1%[lxii] experienced discrimination by a religious organisation

 

Northern Territory

 

  • 20%[lxiii] reported discrimination in these areas at some point
  • 10%[lxiv] experienced at least one instance in the last 12 months
  • 5%[lxv] experienced discrimination by a religious organisation

 

State or territory Experienced anti-LGBTIQ discrimination in health, community services or aged care (%)?
Ever Last 12 months By religious organisation
NSW 21.4 10.9 2.7
Victoria 22.8 12.4 4
Queensland 22 11.4 6.1
WA 22.1 12.8 2.7
SA 19.5 14.3 3
Tasmania 16 10.4 1.9
ACT 23.2 10.7 7.1
NT 20 10 5

 

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

 

The lowest lifetime rates of discrimination in health, community services or aged care were in Tasmania, while the highest (but only just) were in the ACT. Meanwhile, South Australians were most likely to experience discrimination in the last 12 months, while LGBTIQ people in Queensland and the ACT reported the highest rates of discrimination in these areas by religious organisations.

 

**********

 

Question 4: If you feel comfortable, please provide an example of the discrimination you experienced in relation to health, community services or aged care [Optional]:

 

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

 

A lightly-edited[lxvi] version of the answers to this question – providing examples of homophobic, biphobic, transphobic and intersexphobic discrimination in relation to health, community services or aged care – can be found at the following link:

 

 

question-4-examples-of-health-community-services-and-aged-care-discrimination

 

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

 

One of the most common stories was denial of LGBTIQ relationships, including refusal to treat partners as next of kin:

 

“I was asked if I was in a relationship and what not and gender during a visit to a new and local doctor, I said yes and gender non-binary and I was put down as single and female. Single because my partner was a woman and the system didn’t have an option for same sex couples and it was “easier”.”

 

“Having my female partner not being able to be with me in emergency because it was family and partners only. (Had no family in the region at the time)”

 

“My wife was in emergency at [redacted] Hospital and the doctor did not want to discuss with me her condition or provide me with a carers certificate because of our sexuality”

 

“While an inmate in the mental health unit, the doctor assigned to me was very uncomfortable when my partner was in the room. And even though I gave permission, he would not treat my partner with respect or discuss my care with her.”

 

“At a hospital where my partner of over ten years was not accepted as my next of kin. I had to put my son down”

 

“Was at a hospital after becoming very ill and my girlfriend was holding my hand. Once my nurse noticed, her attitude towards me changed and she told me that “friends” couldn’t visit”

 

“While my girlfriend was in hospital and had come in via ambulance I was denied access to her / the ability to see her while she was in the emergency department because a receptionist didn’t believe we were partners. Clearly thought I was ‘just a friend’”

 

“I was critically ill and my partner was ignored by hospital staff as my next of kin”

 

Another common story related to an assumption that being gay (or bi, or trans) automatically equates to being at high risk of HIV, including being subjected to additional testing or ‘safety precautions’ – or, in one case, being denied testing:

 

“Feeling like the dentist did not want to treat me because I answered the at risk of HIV questions (in the 90s)”

 

“Disclosing that I had a same sex partner opened me up to extra medical testing before procedures, including unnecessary HIV testing unrelated to my procedure.”

 

“I was informed that due to being bisexual, I was at a high risk of STDs, regardless of the fact that I am married and in a monogamous relationship.”

 

“A doctor was dismissive of my health concerns and wrote me off as an HIV magnet for being transgender.”

 

“Because I am open about being gay, I have been repeatedly advised by health practitioners to have an HIV test when consulting them about a range of health issues that have no relation to HIV. Of course, I have had HIV tests and would do so again if I thought I had been at risk.”

 

“A GP refused to test me for HIV as he had “better things to do than take care of sexually promiscuous people like” me. I had not told him anything about my sex life apart from the fact that I was gay – this was purely a homophobic assumption on his behalf. He suggested I go to a free sexual health centre in the city instead.”

 

It is unsurprising that these attitudes translated to adverse treatment of people who are HIV-positive:

 

“A doctor was bombastic when I presented at ED when he learned I was HIV +. He just carried on about my HIV Status and not the issue I presented for”

 

Several respondents cited the blanket ban on sexually-active gay men donating blood as being anti-LGBTIQ discrimination:

 

“Apparently just cause I’m gay I can’t donate blood, even tho [sic] I get tested all the time probably more times than a straight person would in their life time”

 

“Gay men are not allowed to give blood if they’ve had sex within the past year. It is alienating and presumptuous”

 

This approach also applies to some transgender people:

 

“Refused to donate blood. Because blood donation is a purely altruistic act, this makes one feel apart from the community. The policy of the local blood collection organisations is to treat all transgender people like gay men, irrespective of the sex they were assigned at birth, the state of the individual’s legal document, the individual’s genitals, etc.”

 

There was a range of stories about homophobia from GPs:

 

“I had a sore throat and my GP suggested that it may be because men weren’t designed to suck cock.”

 

“Doctor called me a homo, and multiple doctors being uncomfortable discussing sexual health issues once finding out my sexuality.”

 

“Being told by a doctor that I am more prone to disease because I am homosexual”

 

“A GP at my local health centre treated me with caution and wrote a ridiculous warning on my medical file for anyone to see. “Warning: Homosexual relations”.”

 

Lesbian respondents also described a variety of discrimination they had experienced:

 

“Talking about sex with GPs and health providers, there’s an assumption that sex is only with the opposite sex and that nothing else is sexual. Even when in a monogamous same sex relationship doctors would assume and ask questions about male sex partners and dismiss my actual partner. Ie, could you be pregnant? When they know I’m a cis woman only having sex with a cis woman.”

 

“Local doctor told me that I couldn’t go on the pill to stop my painful periods due to endometriosis because I was not in a sexually active relationship with a man, that because I was lesbian and not at risk of falling pregnant there was no need to be put on the pill”

 

“I have had a doctor tell me that I shouldn’t get a pap smear because I had never had sex with someone who had a penis, which is just wrong information and could be detrimental to my health. This denial was also mixed with her confusion and homophobia around the fact that I was queer and I felt very uncomfortable and shamed.”

 

This included a particularly-horrific situation involving sexual assault:

 

“I have received many instances of refusal of care or denial of optimal care by health professionals because of my sexuality. But the one that still traumatises me is when I went for a Pap smear with a female gp and she inserted her fingers into my vagina (for what I now know is an optional test) without telling me. I screamed and told her to stop, but she continued saying people like me like this kind of thing…she raped me. While looking at me in the face. Because I am gay.”

 

As with previous survey results, the most frequent stories of discrimination came from trans respondents. This included blatant transphobia, as well as deadnaming and misgendering:

 

“I was referred to by a receptionist to one of her co-workers as ‘a dude who wants to cut his d*ck off.’ The other replied with ‘well, you don’t want those types to breed.’”

 

“In 2005 I was involved in a car crash which necessitated a precautionary visit to the emergency dept at [redacted] in Perth. An orderly could not contain his mirth at me being a transgender person and kept commenting about it and laughing at me several times over a period of hours while I was required to stay motionless on my back awaiting a spinal scan.”

 

“I was repeatedly misgendered by nurses in a public hospital despite my efforts to correct them”

 

“being continually misgendered and deadnamed at a hospital”

 

“No doctor has refused to treat me but I have had doctors refuse to refer to me as a male once they find out, or assume every ailment must be linked to being transgender.”

 

It also included a refusal to provide essential trans-related medical services:

 

“Doctor telling me I should not get PBS for testosterone because it’s a lifestyle choice not a medical condition”

 

“Had a doctor tell me to stop HRT because it was dangerous, he did not seem to think being trans was real.”

 

“Was prevented from getting access to medical treatment and to start my transitioning for over 6 yrs by doctors.”

 

“My first psychiatrist was a gatekeeper who denied me access to services essential to transition.”

 

Several trans respondents complained about systemic discrimination in place simply to access transition:

 

“I think having to get diagnosed with gender dysphoria and have your life torn open by a psychologist is fucking pretty discriminatory. It’s bullshit. My body, my rules.”

 

“the entire process for getting access to gender related assistance is transphobic”

 

This comment seemed to sum up the feelings of many:

 

“Most doctors are totally clueless about how to treat trans people.”

 

A concerning theme to several stories was homophobic, biphobic and transphobic treatment of LGBTIQ people accessing mental health services:

 

“I was in a psychiatric ward for severe mental health issues and I mentioned that I was queer. The registrar fixated on it and tried to make it out that my sexuality was the root of all my problems. He tried to pathologise it.”

 

“I also had a session with a counsellor who referred to me as having a split personality when they found out I was Transgender.”

 

“Psychologists were the worst, though. I have serious mental illness and part of the problem was sexual assault trauma and problems with harassment and discrimination because of being bisexual. The psychologists told me that it didn’t exist and that I had to choose and that “if you want women it means you need mothering in your relationships so work on that with men”. Dangerous lies.”

 

“My counsellor didn’t “believe” in LGBT people or issues and told me I just needed to “get a job, join a gym and eat healthy””

 

“In a psychiatric ward I got told that my being gay was a part of my mental illness and a contributing factor to my depression”

 

Domestic and family violence was also cited as an area of anti-LGBTIQ discrimination:

 

“I’ve contacted domestic violence places for support groups and been told ‘women only’ even though I’m non-binary, assigned female at birth, and don’t pass as male. When I’ve asked where I’m meant to go, they’re suggested men’s behavioural change programs (I was the victim, I ended up with PTSD!) and then said they had no idea.”

 

“DV situation cops didn’t take a woman abusing a woman seriously”

 

“Having no services for DV Support to get help after a 8 yr DV relationship. Mainstream services having no understanding of LGBTIQ relationships/ community”

 

Finally, there were several examples of anti-LGBTIQ discrimination on the basis of religious belief:

 

“I was hospitalised for a suicide attempt. While there, I was sent a chaplain instead of a nurse to watch me. He spent 6 hours telling me how I was going to hell and how much god hated me and my gender was all in my head.”

 

“I was offered help by the salvation army after I was forced to leave home. I was told that I could just go home, once I mentioned that the cause of my situation was abuse related to my sexuality, the belief seemed to be that I should somehow change my mind and then my parents would accept me.”

 

“I was refused for a counselling service because the organization was religion based and insisted they wouldn’t work with someone that was beyond help like me.”

 

“My job in regards to [employment-related organisation] was with a religious org and it ran aged care services. The org wouldn’t recognise an aging couple’s relationship and they were placed in 2 separate care homes”

 

**********

 

Conclusion

 

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

 

This includes more than 1 in every 5 respondents people reporting lifetime experience of such discrimination, with 11.7% reporting at least one instance of anti-LGBTIQ discrimination in health, community services or aged care in the last 12 months alone.

 

Some groups within the community reported even higher rates than these already high averages, with intersex and trans people, Aboriginal and/or Torres Strait Islander LGBTIQ people and people aged 25 to 44 particularly affected.

 

While the rates of discrimination by religious organisations were comparatively low, it is important to note than in most cases, such discrimination is entirely lawful, due to the wide-ranging and completely unjustified religious exceptions to anti-discrimination laws in the majority of Australian jurisdictions.

 

The personal examples of discrimination in health, community services and aged care shared in response to question 4 demonstrate the different forms such prejudice can take, with many heart-breaking stories of homophobia, transphobia and even discrimination by mental health services.

 

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

 

Thank you to all those people who participated in the survey, and of course to everyone who has read the results I have published. Hopefully, through this process we have demonstrated the ongoing problems caused by homophobia, biphobia, transphobia and intersexphobia in Australia – and the urgent need for our lawmakers and decision-makers to take action to address these issues.

 

Finally, if you would like to continue to receive articles on LGBTI rights, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

 

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

 

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

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

 

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

Part 3: Where Discriminatory Comments Occur and Their Impact 

Part 4: Discrimination in Education

Part 5: Discrimination in Employment

[ii] Noting that discrimination against LGBTI people accessing aged care services from Commonwealth-funded aged care facilities operated by religious organisations is prohibited by the Sex Discrimination Act 1984 (although those same protections do not cover LGBTI employees in those facilities).

[iii] 343 people responded to question 2: 189 yes/154 no.

[iv] 344 people responded to question 3: 59 yes/285 no.

[v] 317 people responded to question 1: 84 yes/233 no.

[vi] 46 respondents.

[vii] 11 respondents.

[viii] 626 people responded to question 1: 124 yes/502 no.

[ix] 62 respondents.

[x] 17 respondents.

[xi] 508 people responded to question 1: 82 yes/426 no.

[xii] 44 respondents.

[xiii] 24 respondents.

[xiv] 365 people responded to question 1: 129 yes/236 no.

[xv] 91 respondents.

[xvi] 14 respondents.

[xvii] 15 people responded to question 1: 6 yes/9 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xviii] 2 respondents.

[xix] 1 respondent.

[xx] 480 people responded to question 1: 142 yes/338 no.

[xxi] 92 respondents.

[xxii] 22 respondents.

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

[xxiv] 57 respondents total, with 23 yes to question 1 and 16 yes to question 2.

[xxv] 120 respondents total, with 32 yes to question1 and 20 yes to question 2.

[xxvi] 183 respondents total, with 75 yes to question 1 and 59 yes to question 2.

[xxvii] 57 people responded to question 1: 14 yes/43 no.

[xxviii] 10 respondents.

[xxix] 1 respondent.

[xxx] 860 people responded to question 1: 135 yes/725 no.

[xxxi] 93 respondents.

[xxxii] 28 respondents.

[xxxiii] 431 people responded to question 1: 134 yes/297 no.

[xxxiv] 68 respondents.

[xxxv] 17 respondents.

[xxxvi] 274 people responded to question 1: 65 yes/209 no.

[xxxvii] 25 respondents.

[xxxviii] 11 respondents.

[xxxix] 31 people responded to question 1: 8 yes/23 no. Note that, given the small sample size, these percentages should be treated with some caution.

[xl] 3 respondents.

[xli] 3 respondents.

[xlii] 524 people responded to question 1: 112 yes/412 no.

[xliii] 57 respondents.

[xliv] 14 respondents.

[xlv] 378 people responded to question 1: 86 yes/292 no.

[xlvi] 47 respondents.

[xlvii] 15 respondents.

[xlviii] 245 people responded to question 1: 54 yes/191 no.

[xlix] 28 respondents.

[l] 15 respondents.

[li] 149 people responded to question 1: 33 yes/116 no.

[lii] 19 respondents.

[liii] 4 respondents.

[liv] 133 people responded to question 1: 26 yes/107 no.

[lv] 19 respondents.

[lvi] 4 respondents.

[lvii] 106 people responded to question 1: 17 yes/89 no.

[lviii] 11 respondents.

[lix] 2 respondents.

[lx] 56 people responded to question 1: 13 yes/43 no.

[lxi] 6 respondents.

[lxii] 4 respondents.

[lxiii] 20 people responded to question 1: 4 yes/16 no. Note that, given the small sample size, these percentages should be treated with some caution.

[lxiv] 2 respondents.

[lxv] 1 respondent.

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

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive remarks.

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

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

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

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

In this article, I will be focusing on their answers to three questions about experiences of anti-LGBTIQ physical abuse or violence, including publishing their personal stories of homophobic, biphobic, transphobic and intersexphobic violence.

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

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

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

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

&

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

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

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

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

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

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

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

LGBTIQ Status

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aboriginal and Torres Strait Islander people

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

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

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

Age

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State or Territory of Residence

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

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

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

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

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

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

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

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

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

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

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

**********

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

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

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

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

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

question 3 physical abuse or violence comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some shorter comments were nevertheless shocking:

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

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

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

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

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

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

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

“Just being punched in the face.”

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

**********

Conclusion

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

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

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

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

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

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

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

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

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

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

**********

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

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)
  • Lifeline: 13 11 14, lifeline.org.au

Footnotes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-Removing identifying information, and

-Removing offensive (for example, racist) remarks.

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

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

Letter to Paul Lynch re LGBTI Anti-Vilification Reform

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

 

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

 

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

 

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

 

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

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

This would involve:

 

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

 

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

 

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

 

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

 

Sincerely,

Alastair Lawrie

 

print.jpg

NSW Shadow Attorney-General Paul Lynch

 

Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

Post Update #3: 12 January 2017

Contrary to the response received from the Department of Justice in November 2015 (included below), and commitments given by Attorney-General Gabrielle Upton in October 2015, the NSW Government did not release an Exposure Draft Bill to reform vilification laws in early 2016.

In fact, as noted by the Sydney Morning Herald in November 2016: “NSW Parliament has risen for the year without any action on reforms promised by the NSW Attorney-General to ethnic communities a year ago to make it easier to prosecute serious racial vilification cases in the state.”

That means there has been an entire year of inaction on much-needed reforms to vilification laws, that would have not only strengthened racial vilification laws, but also harmonised provisions across the different grounds for vilification (including homosexual, transgender and HIV/AIDS vilification).

This inaction is incredibly disappointing given that same 12-month period has seen a wide range of homophobic and transphobic public debate in NSW, and across Australia (see 2016: Annus Homophobicus). Hopefully 2017 will see this situation change – although, based on the past year, I certainly won’t be holding my breath.

 

Post Update #2: 23 December 2015

I received the following response to my letter (below) on 19 November 2015, not from the Attorney-General Ms Upton, but instead from the Director of the Community Relations Unit in the Department of Justice [and apologies for the delay in posting before now]:

“I refer to your email to the Attorney General, the Hon Gabrielle Upton MP, about your concerns regarding a review of the NSW racial vilification laws. The Attorney General has asked me to reply on her behalf.

NSW is one of the most culturally, linguistically and religiously diverse
communities in the world. To protect the diversity of our community, the
Government has committed to amending the Anti-Discrimination Act 1977 (the Act), in particular the racial vilification laws.

Currently, the vilification offences make it clear that for vilification to
be an offence it must threaten violence or incite others to threaten
violence.

As you are aware, the New South Wales Legislative Council’s Law and Justice Committee conducted a review of racial vilification laws in New South Wales, in particular section 20D of the Act.

Section 20D of the Act makes it a criminal offence to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race by means which include; threatening physical harm towards, or towards any property of, the person or group of persons, or inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

In its Report, the Committee concluded that improvements were required to the Act. These improvements include allowing the President of the
Anti-Discrimination Board to refer complaints directly to the NSW Police,
extending the time limit for commencing prosecutions from six months to 12 months and clarifying reckless actions are sufficient to establish an
intention to incite under section 20D.

In light of the Committee’s Report, the NSW Government considers the racial vilification offence and other vilification offences relating to
homosexuality, HIV/AIDS status and transgender status in the Act also need revising.

The Government intends to release for public consultation an exposure draft Bill amending the State’s vilification laws, with legislation to be
introduced into Parliament in the first half of 2016. Details regarding the
draft exposure Bill will be released in early 2016.

Thank you for taking the time to write about this issue.

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

 

Post Update #1: 1 November 2015

The NSW Attorney-General, the Hon Gabrielle Upton MP, announced the NSW Government’s position of vilification reforms on Monday 19 October 2015.

According to the Sydney Morning Herald[i]:

“The government will overhaul hate speech laws in NSW following the terror attack at Parramatta police headquarters and calls from the opposition for stronger laws to clamp down on ‘radical preachers’.

Attorney-General Gabrielle Upton said the government will strengthen and streamline racial vilification laws, defying right-wing commentators who have previously said proposed reforms were ‘straight out of the Leninist playbook.’

Ms Upton said recent events had ‘reinforced the necessarily of being vigilant to and guarding against the spread of racial vilification’.”

Importantly, the Guardian[ii] also reported that “LGBTIQ groups have been lobbying for hate speech against members of their communities to be included in any new laws and it is understood the proposed changes would include them” although it did not provide any further information on this issue.

I sought clarification through twitter from the Attorney-General on the inclusion, or exclusion, of LGBTI vilification in the reforms, and received the following reply:

IMG_0640

This response obviously gives hope that vilification provisions contained in the Anti-Discrimination Act 1977 may finally be amended to be genuinely LGBTI inclusive, although it will be important to closely scrutinise the Government’s exposure draft Bill, which is expected to be released for public consultation in January 2016.

One final cause for optimism – on the day before Attorney-General Upton’s announcement, the Leader of the NSW Opposition, Luke Foley, made a similar commitment on vilification reform. As reported by samesame[iii]:

“The Labor opposition in New South Wales wants to ensure people who promote or advocate violence based on race, gender or sexual orientation are punished under the law.”

All we need to do now is hold both the Liberal-National Government, and Labor Opposition, to their public commitments.

[i] “Hate speech overhaul to try to spread of racial vilification”, Sydney Morning Herald, 19 October 2015: http://www.smh.com.au/nsw/hate-speech-overhaul–to-try-to-stop-spread-of-racial-vilification-20151018-gkbukb.html

[ii] “New South Wales hate speech laws to clamp down on ‘violent extremists’”, The Guardian, 19 October 2015: http://www.theguardian.com/australia-news/2015/oct/19/new-south-wales-hate-speech-laws-to-clamp-down-on-violent-extremists

[iii] “NSW Opposition: ‘Hate speech should be a crime’”, samesame, 19 October 2015: http://www.samesame.com.au/news/12884/NSW-opposition-Hate-speech-should-be-a-crime

 

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

I am writing to you on the subject of possible changes to anti-vilification laws in the Anti-Discrimination Act 1977(‘the Act’), as flagged by you in two tweets on 18 September 2015[i], and as confirmed in an article which appeared in The Australian on 23 September 2015, in which your spokesperson “said the NSW government was ‘working towards reform’ in the area”.[ii]

Specifically, I am writing to seek your assurance that any reforms to anti-vilification laws will apply equally across all grounds of vilification, including homosexual, transgender and HIV vilification which are also included in the Act, and will not prioritise racial vilification as more important, or worthy of punishment, than vilification on the basis of other attributes.

Instead, I urge you and the Liberal-National Government to ensure that anti-vilification laws apply fairly both to members of NSW’s ethnic communities, and to the state’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

To begin with, I note that currently the provisions of the Anti-Discrimination Act only protect lesbian, gay[iii] and transgender[iv] members of the LGBTI community. There is no legal protection for bisexual and intersex people against vilification on the basis of who they are (or against discrimination more broadly, for that matter).

If reforms are to be made to anti-vilification laws in NSW, then the specific inclusion of bisexual and intersex people in the Act must be a priority.

Even more concerningly, I note that there is a discrepancy in the penalties for vilification which are contained in the Act, depending on the attribute which is involved.

For example, while the maximum penalty for homosexual and transgender vilification by an individual is set at “10 penalty units or imprisonment for 6 months, or both”[v], the penalty for racial or HIV vilification by an individual is set at “50 penalty units or imprisonment for 6 months, or both.”[vi]

Given the vast majority of prosecutions for vilification offences in NSW are unlikely to result in imprisonment, the consequence of this discrepancy is to send the message to the community, whether intentionally or otherwise, that racial and HIV vilification is five times more important, or worthy of punishment, than homosexual or transgender vilification.

I find this message to be inherently offensive – that equivalent acts of vilification should attract differing penalties simply because it involved sexual orientation or gender identity rather than race. I sincerely hope that you agree – and that you will therefore commit to harmonising the penalties for vilification contained in the Act.

However, I am concerned that, rather than ameliorating existing problems, the reforms to NSW’s anti-vilification laws which you have indicated you are considering will instead compound the differential treatment of racial vilification compared to homosexual or transgender vilification.

That is because these reforms appear to be based primarily on the recommendations of the 2013 Legislative Council Standing Committee on Law and Justice Inquiry into Racial Vilification Law in New South Wales.[vii]

This Inquiry made a number of recommendations to amend racial vilification laws, including to:

  • Include “quasi-public places, such as the lobby of a strata or company title apartment block” (Recommendation 1)
  • Clarify that “recklessness is sufficient to establish intention to incite” (Recommendation 3)
  • “[R]eview the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions” (Recommendation 6)
  • “[R]epeal the requirement for the Attorney-General’s consent to prosecutions of serious racial vilification” (Recommendation 7)
  • Extend the time limits for commencing prosecutions for racial vilification offences to 12 months, or alternatively to extend the timeframe for the President of the Anti-Discrimination Board to refer complaints to the Attorney-General (Recommendations 9, 10)
  • “[A]llow the President of the Anti-Discrimination Board of NSW to directly refer serious racial vilification complaints to the NSW Police Force” (Recommendation 11) and
  • Provide training to NSW Police Force members about the offence of serious racial vilification (Recommendation 14).[viii]

It is arguable that the inquiry itself was flawed from the beginning given it focused on only one out of the four existing grounds of vilification in the Act.

However, what is beyond doubt is that, were you to adopt the recommendations of this Inquiry as a whole, but only with respect to racial vilification, you and the Liberal-National Government would in effect be creating a discriminatory ‘hierarchy’ of vilification laws and procedures in NSW law.

The offences of racial and homosexual vilification are drafted in exactly the same way – the only difference being substitution of the word homosexuality for race.[ix]

In which case, there cannot be any justification for the introduction and passage of laws which would mean that only racial vilification applies in quasi-public places, or includes recklessness, or attracts higher penalties, or does not need Attorney-General approval to commence proceedings, or has longer timeframes for prosecution, or can be directly referred to Police, or for which NSW Police Force members are specifically trained.

Therefore, the implementation of these reforms, if applied exclusively to racial vilification, would be both discriminatory and unjustifiable.

However, what would make them repugnant is the fact that the Standing Committee on Law and Justice’s own rationale for at least one of its recommendations – to extend the time limits for commencing prosecution of vilification offences to 12 months – is in fact based on a case of alleged homosexual vilification. As discussed in Chapter 6 of the Committee Report:

“6.20 The Board referred to a recent case involving homosexual vilification, Simon Margan v Director of Public Prosecutions & Anor [2013] NSWSC 44, which illustrated the potential issues surrounding the timeframe for lodging vilification complaints. In that case, Mr Margan lodged a complaint with the Anti-Discrimination Board of NSW within the 12 month timeframe required under s89B of the Anti-Discrimination Act. However the Director of Prosecutions (DPP), and later the Supreme Court, dismissed the offence as statute barred as it was a summary offence and proceedings were required to be commenced within six months.

Committee comment

6.21 The Committee understands that there is a significant discrepancy between the timeframes for lodging complaints under s89B of the Anti-Discrimination Act (12 months of an incident occurring) and s179 of the Criminal Procedure Act 1986 (summary offences must commence within six months of an incident occurring). The case of Simon Margan v Director of Public Prosecutions & Anor highlighted the injurious impact that this discrepancy can have on vilification complaints.

6.22 It appears sensible to align the above timeframes. Therefore the Committee recommends that the NSW Government extend the time limit for prosecutions under section 179 of the Criminal Procedure Act to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act.”[x]

And yet, despite noting the ‘injurious impact’ of the discrepancies in time limits on Mr Margan, whose complaint was based on homosexual vilification, the Committee’s recommendation was explicitly restricted to racial vilification:

Recommendation 9

That, for the purposes of racial vilification proceedings only [emphasis added], the NSW Government extend the time limit for commencing prosecutions under section 79 of the Criminal Procedure Act 1986 to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act 1977.”[xi]

If you and the Liberal-National Government were to implement Recommendation 9 as it stands then you would only be adding insult to injury.

For all of the reasons outlined above, I urge you to ensure that any reforms which you make to the anti-vilification laws contained in the Anti-Discrimination Act treat vilification equally across all grounds, and do not unjustifiably, and above all unjustly, prioritise racial vilification offences and discriminate against homosexual, transgender and HIV vilification protections.

Finally, if you are serious about modernising the vilification provisions contained in the Act you should also expand the grounds covered to offer vilification protection to bisexual and intersex people for the first time (and indeed to provide them with anti-discrimination coverage too), and to remove the existing discrepancies in penalties between racial and HIV vilification offences on the one hand, and homosexual and transgender vilification offences on the other.

Thank you in advance for taking my correspondence into consideration. Should you require additional information, or wish to clarify any of the above comments, please do not hesitate to contact me at the details provided below.

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

NSW Attorney-General the Hon Gabrielle Upton MP

[i] Gabrielle Upton MP (@gabrielleupton), 8:55am – 18 Sep 2015: “.@shumba60 Racial vilification abhorrent. NSW Govt considering proposed changes to streamline/strengthen race hate laws @mikebairdMP #nswpol”

Gabrielle Upton MP (gabrielleupton), 3:39pm – 18 Sep 2015: “.@VicAlhadeff #NSWGovt wants inclusive, diverse comm. Considering changes to streamline/strengthen race hate laws @NSWJBD @ajnnews #nswpol”

[ii] “Taunts to Trigger Race-Hate Law Overhaul”, The Australian, September 23 2015: http://www.theaustralian.com.au/national-affairs/state-politics/taunts-to-trigger-race-hate-law-overhaul/story-e6frgczx-1227539272920?sv=64dde3a02ebcfb4c634183c907bbeacf

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.”

[v] S49ZTA(1)(b), s38T(1)(b)

[vi] S20D(1)(b), s49ZXC(1)(b)

[vii] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/E08D4387100A3C56CA257C35007FCC4D?open&refnavid=x

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

[x] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013, pp84-85.

[xi] Ibid, p85.

Submission to Australian Human Rights Commission Sexual Orientation, Gender Identity and Intersex (SOGII) Rights Consultation

One of my favourite campaigns of recent times – It Gets Better – performs a valuable role, letting vulnerable LGBTI youth know that, while the homophobia, biphobia, transphobia and intersexphobia they may be experiencing is awful, for most of them, it will get better. I emphasise the word most here because we should always remember that it does not get better for everyone.

Meanwhile, as the LGBTI movement itself ‘ages’, many of us are increasingly celebrating the past, and reflecting on significant community milestones (such as last year’s 30th anniversary of the decriminalisation of male homosexuality in NSW, or the 40th anniversary of Sydney’s Gay & Lesbian Mardi Gras which is now only three years away). But, while absolutely necessary, looking backwards should never obscure the challenges that remain ahead.

This consultation, including an examination of legislation, policies and practices by government(s) that unduly restrict sexual orientation, gender identity and intersex rights, provides an opportunity to highlight some of the major obstacles which continue to prevent LGBTI Australians achieving full equality. In this submission, I will concentrate on six such areas:

  1. Involuntary or coerced sterilisation of intersex children

These unjustified practices – surgeries performed with the aim of ‘normalising’ intersex children according to the expectations of their parents, their doctors, and/or society at large, so that they conform to an exclusionary man/woman binary model of sex – are human rights abuses, plain and simple.

Obviously done without the child’s consent, such practices can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make their bodies fit within the idea of what a man or woman ‘should’ be, ignoring the individual involved and their fundamental rights to bodily integrity, and personal autonomy.

That these practices continue in 2015 is abhorrent – and the fact the Commonwealth Government has yet to formally respond to the Senate’s 2013 Report into this issue (http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx) is, or at least should be, a scandal.

  1. Restrictions on the rights of transgender people

Another group within the LGBTI community whose rights continue to trail those whose identities are based on sexual orientation (lesbian, gay and bisexual people) are transgender Australians.

This includes the fact there continue to be ‘out-of-pocket’, in many cases quite significant, expenses for medical support for trans* people simply to affirm their gender identity. This is a denial of their human rights – access to trans* surgeries and related medical services should not be restricted by the capacity to pay, but instead should be fully publicly-subsidised through Medicare.

The ongoing requirement that married transgender Australians must divorce their spouses in order for their gender identity to be legally recognised is also a fundamental breach of their rights, and must end.

  1. Processing and resettlement of LGBTI refugees in countries which criminalise homosexuality

Australian Governments, of both persuasions, are guilty of violating the human rights of LGBTI refugees. These are people who are (often) fleeing persecution on the basis of their sexual orientation, gender identity or intersex status, and seeking our protection.

Australia’s response? To detain them, indefinitely, in inhumane prison camps on Nauru and Manus Island. For many, while detained they are at risk of prosecution under the laws of Papua New Guinea and/or Nauru, both of which continue to criminalise male-male intercourse. Even after they are found to be refugees, they are then ‘resettled’ in these countries, in effect exposing people who have fled persecution to potentially more persecution.

While I believe the offshore processing and resettlement of all refugees is unjust, it should be recognised it has a disproportionately negative impact on LGBTI refugees.

  1. Denial of the right of LGBTI students to an inclusive education

It is encouraging that greater numbers of young LGBTI people feel comfortable in disclosing their status at an earlier age – and for some, that they attend genuinely inclusive schools. However, this inclusion is by no means universal.

For example, the recently developed national Health & Physical Education curriculum does not even include the words lesbian, gay or bisexual, and does not guarantee students will be taught comprehensive sexual health education (even omitting the term HIV). This is a massive failure to ensure all students learn vital information that is relevant to their health.

Similarly, while the national Safe Schools Program is a welcome initiative to counter homophobia and bullying, participation in the program is optional, with most schools (and even some entire jurisdictions) opting out. The right to attend school free of discrimination should not depend on a student’s geographic location, or their parent/s’ choice of school.

Finally, religious exceptions to anti-discrimination legislation (in all jurisdictions outside Tasmania), mean many LGBTI students are at risk of discrimination, by their school, simply for being who they are.

  1. Limitations on anti-discrimination protections

Students are not the only LGBTI individuals let down by Australia’s current anti-discrimination framework. These same religious exceptions mean that, in most jurisdictions, LGBTI people can be discriminated against in a wide range of areas of public life, both as employees and people accessing services, in education, health, community services and (as employees) in aged care.

The attributes which are protected under anti-discrimination law also vary widely, with intersex people only truly protected under Commonwealth and Tasmanian law, different definitions of transgender (including extremely narrow protections in Western Australian legislation), and NSW excluding bisexual people altogether.

Finally, only four jurisdictions have vilification protections for (some) members of the LGBTI community – with no Commonwealth LGBTI equivalent of section 18C of the Racial Discrimination Act.

  1. Ongoing lack of marriage equality

I include this not because I consider it as important as the issues listed above, but simply as someone who has been engaged to be married for more than five years – and has no idea how much longer he will have to wait to exercise the same rights as cisgender heterosexual couples, with the only difference being who I love. Marriage discrimination is wrong, it is unjust, and it must go.

This submission is by no means comprehensive – there are a variety of other issues which I have excluded due to arbitrary word length restrictions (including mental health issues, anti-LGBTI violence, and discrimination against rainbow families – with my partner and I able to adopt in Sydney, but not Melbourne or Brisbane).

In conclusion, while it does get better, and over time, it most certainly has got better, there are still many ways in which the rights of LGBTI Australians continue to be denied – and about which we, as LGBTI advocates and activists, should remain angry, and most importantly, take action.

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

NB Public submissions to the AHRC SOGII Rights consultation close on Friday 6 February. For more details, head to: <https://www.humanrights.gov.au/sogii-rights

For more information on some of the topics listed above, see my previous posts on:

– Submission to Involuntary and Coerced Sterilisation of Intersex People Senate Inquiry <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/

– Letter to Scott Morrison About Treatment of LGBTI Asylum-Seekers and Refugees Sent to Manus Island <https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

– Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion <https://alastairlawrie.net/2014/12/09/letter-to-minister-pyne-calling-for-coag-to-reject-health-physical-education-curriculum-due-to-ongoing-lgbti-exclusion/

– The Last Major Battle for Gay & Lesbian Legal Equality in Australia Won’t be about Marriage <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/  and

– Bill Shorten, Will you Lead on Marriage Equality? <https://alastairlawrie.net/2015/01/24/bill-shorten-will-you-lead-on-marriage-equality/

No Homophobia No Exceptions Facebook Page

As I have written previously, I strongly believe that, long after marriage equality has been won in Australia, we, the members of the LGBTI community, will still be fighting for the right not to be discriminated against, in public life, by religious organisations (see: https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/).

The campaign to remove the special rights which are given to religious organisations to discriminate against us in health, education, community services and elsewhere will be a long one – and we will not win it unless we start taking action now.

As part of that much larger battle, today I have started my own small Facebook page, called No Homophobia No Exceptions, with the aim of drawing attention to this issue and, where possible, to campaign for an end to religious exceptions in Commonwealth, state and territory anti-discrimination laws.

If you support this campaign, I encourage you to like the page: https://www.facebook.com/lgbtiantidiscrimination I have also included below the short, and long, description of the page for your information.

NHNE profile pic

Short Description

Online campaign for the removal of religious exceptions to LGBTI anti-discrimination laws.

Long Description

No Homophobia No Exceptions is a page dedicated to fighting against homophobia, biphobia, transphobia and intersexphobia.

Its primary goal is the removal of exceptions to anti-discrimination laws, including the Commonwealth Sex Discrimination Act 1984 and NSW Anti-Discrimination Act 1977, which allow religious organisations to discriminate against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

No Homophobia No Exceptions also supports broader law reform to ensure that all members of the LGBTI community have access to anti-discrimination protections (for example, intersex status is only covered federally and in Tasmania, Western Australian legislation only includes trans people who have had gender reassignment, and NSW law excludes bisexual people).

It also supports the introduction of comprehensive anti-vilification protections for the LGBTI community (currently, only four Australian jurisdictions include some form of LGBTI vilification laws, and most only apply to some sections of the community).

Finally, No Homophobia No Exceptions recognises that the fight against homophobia, biphobia, transphobia and intersexphobia will not be won with legislation alone. As a result, this page aims to shine a light on examples of discrimination against the LGBTI community, both to campaign for them to be redressed, and as part of the wider cultural movement for LGBTI equality and acceptance.

#NoHomophobiaNoExceptions

If you support this campaign, please like: https://www.facebook.com/lgbtiantidiscrimination Thanks, Alastair