Opening Statement to Victorian Inquiry into Anti-Vilification Protections

On 25 June, I was invited to give evidence to the Victorian Parliamentary Inquiry into Anti-Vilification Protections. My opening statement, highlighting the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, is published below (the full transcript of my evidence, including answers to questions from members of the Legislative Assembly’s Legal and Social Issues Committee, can be found here).

This evidence builds on my submission to the inquiry in December 2019. The Committee’s original timeline requires them to report by 1 September 2020, although given current circumstances it would of course be understandable for this deadline to be extended. Hopefully, whenever the Committee reports, they recommend that LGBTI Victorians are finally provided with legal protections against vilification.

**********

“Thank you very much for the opportunity to appear today and give evidence on this important topic. I do so as an advocate for LGBTI anti-discrimination law reform for close to two decades. This includes previously serving as the chair of the policy working groups of both Victorian and New South Wales gay and lesbian rights lobbies, although I appear here in a personal capacity. In my comments I will focus on terms of reference 4, ‘comparisons in the operation of the Victorian Act with legislation in other jurisdictions’, and 8, ‘possible extension of protections or expansion of protection to classes of people not currently protected’.

Starting with the comparative approach, it is clear that Victoria has fallen behind the standards set by several other Australian jurisdictions. In my own state of New South Wales protections against vilification on the basis of homosexuality were first added to the Anti-Discrimination Act in 1993, just four years after racial vilification was first prohibited and before passage of the commonwealth Racial Hatred Act 1995. Transgender vilification protections were then added in 1996. While there are limitations to these protections, such as the exclusion of bisexual, non-binary and intersex people, many LG and T people here have enjoyed anti-vilification coverage for close to a quarter of a century.

LGBT people have also been protected against vilification in Queensland for almost 20 years following the inclusion of both sexuality and gender identity in their vilification provisions in 2002. The ACT Discrimination Act has included prohibitions on vilification on the basis of sexuality and transsexuality from 2004, with gender identity replacing transsexuality in 2010 and intersex added in 2016, meaning the ACT’s vilification provisions cover the entire LGBTI community, one of two such laws in the country.

The other jurisdiction to cover all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania, which has the most extensive anti-vilification laws in Australia. These protections have two parts. Section 19 of the Tasmanian Anti-Discrimination Act prohibits public acts that:

incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons …

That section has included sexual orientation from its commencement in 1999, and it included transsexuality within sexual orientation from that time until 2014. Gender identity and intersex variations of sex characteristics were both added in May last year. Section 17 separately prohibits:

conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute …

Those provisions have covered sexual orientation, gender identity and intersex status, or intersex variations of sex characteristics, since 2014. From a comparative approach alone, it is disappointing the Victorian Racial and Religious Tolerance Act has not been extended beyond racial and religious vilification since it commenced in 2002.

Turning now to the second issue—the possible extension of protection to classes of people not currently protected—I think the preamble to the Act is quite instructive. Paragraph 3 in particular reads:

… some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

From an LGBTI advocate’s perspective, it seems obvious to me that the exact same description could be applied to my community. Some people are vilified on the ground of their sexual orientation, gender identity or sex characteristics. This conduct is contrary to democratic values because of its effect on us. Homophobia, biphobia, transphobia and intersex phobia diminish our dignity, sense of self-worth and belonging to the community. It also reduces our ability to contribute to or fully participate in all aspects of society as equals and reduces the benefits of diversity.

Explaining this to you in a more structured or systematic way, I would submit (1) sexual orientation, gender identity and sex characteristics are fundamental or inherent human characteristics; (2) lesbian, gay, bisexual, transgender and intersex people are frequently subjected to vilification on the basis of who they are; and (3) that vilification can cause serious harm and should therefore be legally prohibited.

In 2020 the first point is obviously not up for serious debate. In terms of points 2 and 3, I would draw the committee’s attention to a community survey which I conducted at the end of 2016 with 1672 LGBTIQ respondents from around Australia, including 386 in Victoria [*see below]. One of the questions asked, ‘Have you ever experienced verbal harassment or abuse because of your sexual orientation, gender identity or intersex status?’. Overall 74 per cent of respondents answered yes, with 48 per cent of all respondents then reporting at least one instance of verbal harassment or abuse in the previous 12 months.

That is one in two LGBTIQ Australians indicating they were verbally abused in the year 2016 alone, which I should note was before the postal survey. Perhaps unsurprisingly but nevertheless disappointingly, these rates were even higher amongst transgender respondents: 68.3 per cent reported abuse in the previous 12 months. And intersex respondents, 82.2 per cent in the previous year. The rates in Victoria were average for the country, 74.1 per cent reporting abuse or harassment ever and 49.8 per cent in the previous 12 months.

Now I acknowledge that many—indeed, likely most—of these responses would fall short of the legal standard for vilification, but no doubt some would meet it. Taking just one respondent’s experience:

I have been referred to as a tranny and had both my sexuality and gender identity mocked and invalidated repeatedly. I have been told to kill myself an innumerable number of times, including being told to ‘get my teeth and gender straight or kill myself’, and that my gender is ‘cancer’. This is just a short list of the abuse I’ve suffered.

When asked for the location for anti-LGBTI comments in the previous 12 months, 92 per cent of respondents said social media, 83 per cent said politics, 81 per cent religion, 80 per cent media and 67 per cent in a public space. Finally, when asked to explain the impact that witnessing homophobic, bi-phobic, transphobic and intersex-phobic comments had on him, here are just two of the comments received:

They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I will be alone forever, like no-one will love me, like I should just kill myself because it would be easier.

And:

… disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.

This brings me back to the preamble of the Racial and Religious Tolerance Act and the benefit that including sexual orientation, gender identity and sex characteristics as protected attributes would bring. In my view it would not only reflect Victoria’s democratic values but enhance the dignity, self-worth and belonging of a significant cohort of Victorians. That would be a positive outcome, and I hope the committee, and the Parliament ultimately, agrees. Thank you.”

*These figures, and quotes, are taken from my 2016 research survey ‘The State of Homophobia, Biphobia and Transphobia’.

No Homophobia No Exceptions (1)

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification

Hate-speech against minority groups is inherently harmful, and most people accept it should be regulated in some way (even if there is debate about what such regulation should look like).

Indeed, almost a quarter of a century since racial vilification was prohibited under Commonwealth law – the Racial Hatred Act was passed by Parliament in August 1995 – many probably assume that vilification against minority groups, including against lesbian, gay, bisexual, transgender and intersex (LGBTI) people, is already outlawed.

Which means that some would likely be surprised to discover the majority of Australian jurisdictions do not prohibit vilification against LGBTI people, and that even among those states and territories that do, only two cover all parts of our community.

Tasmania

The first jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people is Tasmania.

Section 19 of the Anti-Discrimination Act 1998 (Tas) outlaws ‘inciting hatred’:

‘A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ protected attributes including sexual orientation, gender identity and intersex variations of sex characteristics.’

Tasmania also has best practice protections under section 17(1), which further provides that:

‘A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person… in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.’

Once again, the attributes covered include sexual orientation, gender identity and intersex variations of sex characteristics.

Australian Capital Territory

The ACT is the second jurisdiction that prohibits vilification against all of lesbians, gay men, bisexuals, transgender and intersex people.

Section 67A of the Discrimination Act 1991 (ACT) makes vilification unlawful:

‘It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(b) gender identity

(d) intersex status

(g) sexuality.’

Although it should be noted that intersex advocates have called for discrimination and vilification protections on the basis of ‘intersex status’ to be replaced by the attribute of ‘sex characteristics’,[i] based on the definition in the Yogyakarta Principles plus 10.[ii]

Queensland

Queensland is one of two other jurisdictions that protect some, but not all, parts of the LGBTI community against vilification.

Section 124A of the Anti-Discrimination Act 1991 (Qld) provides that:

‘A person must 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, religion, sexuality or gender identity of the person or members of the group.’[iii]

And it should be noted that the definition of gender identity in this Act only includes ‘binary’ transgender gender, not non-binary or other gender diverse people (‘gender identity, in relation to a person, means that the person… identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex’).

Meaning that only LGB and some T Queenslanders are protected. Unfortunately, there is no indication the Queensland Government will update the definition of gender identity, and include sex characteristics as a protected attribute, before the upcoming state election, scheduled for 31 October 2020.

New South Wales

The situation in NSW is far more complex. The Anti-Discrimination Act 1977 (NSW) contains civil sanctions against vilification targeting binary transgender people, as well as lesbians and gay men.

Specifically, section 38S(1) prohibits anti-transgender vilification:

‘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.’

However, this clause does not protect non-binary or other gender diverse people, because the definition in section 38A of the Act is out-dated:

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

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

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

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

Section 49ZT(1) then prohibits vilification – meaning inciting 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’.

Note that this only refers to homosexuality, meaning civil sanctions under the Anti-Discrimination Act 1977 (NSW) do not cover bisexual people.

On the other hand, amendments to the Crimes Act 1900 (NSW), introduced in 2018, created a criminal offence of ‘publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’. Section 93Z(1) now provides that:

‘A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

(c) the sexual orientation of the other person or one or more of the members of the group

(d) the gender identity of the other person or one or more of the members of the group

(e) that the other person is, or one or more of the members of the group are, of intersex status…’

The individual penalty for contravention of this provision is up to 100 penalty units or 3 years imprisonment (or both).

The next NSW state election is not due until 25 March 2023, meaning there is plenty of time available for the current Government to amend the Anti-Discrimination Act 1977 (NSW) to ensure its civil vilification prohibitions also cover bisexuals, non-binary or other gender diverse people and intersex people – as well as fixing some of the many, many other problems with Australia’s worst LGBTI anti-discrimination law.[iv]

*

Five other jurisdictions do not prohibit anti-LGBTI vilification, at all:

Commonwealth

There is currently no prohibition – civil or criminal – on anti-LGBTI vilification in Commonwealth law.

This remains the case almost 25 years since the Racial Hatred Act 1995 (Cth) added section 18C to the Racial Discrimination Act 1975 (Cth) (‘the RDA’):

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

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

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.’

Unfortunately, it seems far more likely the Morrison Liberal/National Government will wind back section 18C of the RDA (something former Attorney-General George Brandis attempted, but thankfully failed, to do), than to introduce an LGBTI equivalent before the next federal election, due in May 2022.

Indeed, current Attorney-General Christian Porter’s proposed Religious Discrimination Bill, if passed, would immediately undermine Tasmania’s existing prohibition on conduct which offends, humiliates, intimidates, insults or ridicules LGBTI people,[v] as well as leaving the door open to explicitly overriding all state and territory LGBTI anti-vilification laws, via simple regulation, in the future.[vi]

Victoria

Victoria is another jurisdiction that fails to protect LGBTI people against vilification.

The Equal Opportunity Act 2010 (Vic) contains no prohibitions against vilification, for anyone. While, as the name suggests, the Racial and Religious Tolerance Act 2001 (Vic) currently only prohibits racial and religious vilification.

On the positive side, and unlike the Commonwealth, there are at least signs of possible progress in Victoria, with Fiona Patten MLC having introduced a Racial and Religious Tolerance Bill 2019. Her Bill would add sexual orientation, gender identity and sex characteristics (among other categories) to the list of protected attributes in that Act.

The issue of anti-vilification protections is also being considered by a parliamentary committee, with that inquiry due to report by 1 September 2020.[vii] Which leaves sufficient time for the Victorian Government to take action to address this shortcoming before the next election, on 26 November 2022.

Western Australia

Another jurisdiction with disappointingly out-dated anti-discrimination legislation – perhaps the second-worst in the country behind only NSW – is Western Australia.

The Equal Opportunity Act 1984 (WA) does not contain any prohibitions on vilification, on any attribute. However, the Criminal Code Act 1913 (WA) does create a range of offences linked to racial vilification[viii] – although there are no equivalent offences for anti-LGBTI vilification.

The Western Australian Government has referred the Equal Opportunity Act 1984 (WA) to the Law Reform Commission of Western Australia for review. Encouragingly, one of the terms of reference for this inquiry is to consider ‘the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification’.

However, the website for the inquiry has not been updated for more than 12 months (since 6 March 2019), and the next Western Australian election is due in less than 12 months (scheduled for 13 March 2021), making it highly unlikely for LGBTI anti-vilification protections to be passed this term.

South Australia

South Australia also has no anti-vilification coverage for the LGBTI community.

The Equal Opportunity Act 1984 (SA) does not include any vilification provisions, while, as the name suggests, the Racial Vilification Act 1996 (SA) only covers vilification based on race.

Unlike Victoria and Western Australia, though, I am not aware of any South Australian Government processes considering the issue of LGBTI anti-vilification laws prior to their next state election, to be held on 19 March 2022.

Northern Territory

The Northern Territory is unique, in that it is the only Australian jurisdiction without its own racial vilification provisions. However, section 18C of the RDA still applies, which means racial vilification is outlawed – there is no such luck for LGBTI Territorians.

The Northern Territory Attorney-General’s Department did conduct a public consultation about their Anti-Discrimination Act (NT) in January 2018, which included consideration of ‘introducing specific anti-vilification laws prohibiting offensive conduct on the basis of race, religious belief, disability, sexual orientation, gender identity and intersex status.’

Unfortunately, that inquiry’s website has not been updated since May 2019 – with that ‘radio silence’ making it extremely unlikely LGBTI anti-vilification laws will be passed before the Northern Territory election which is just over two months away (22 August 2020).

*

Vilification against members of the lesbian, gay, bisexual, transgender and intersex community can be incredibly damaging, especially for younger and/or vulnerable individuals. This was demonstrated, painfully and unequivocally, by the harm caused by the Turnbull Liberal/National Government’s wasteful and unnecessary same-sex marriage postal survey in 2017.

However, it is disturbing to realise that, in 2020, fewer than one million Australians – out of a population of more than 25 million – live in jurisdictions that prohibit vilification against all parts of the LGBTI community: Tasmania and the ACT.

As we have seen, another two states – Queensland and NSW – offer only partial coverage, while the Commonwealth, Victoria, Western Australia, South Australia and Northern Territory offer no legal protection at all.

Well. That. Is. Simply. Not. Good. Enough.

This winter, I will be regularly posting about these and other serious weaknesses of Australian LGBTI anti-discrimination laws.[ix] #WinterOfDiscriminationContent. To follow, you can:

  • Sign up to my blog (via the right-hand scroll bar on desktop, or near the bottom of the page on mobile)
  • Follow me on twitter, and/or
  • Like No Homophobia, No Exceptions on Facebook.

Anti-discrimination protections are essential to the full participation of lesbian, gay, bisexual, transgender and intersex people in Australian life. And we have allowed them to atrophy for far too long. So, as well as fighting against a Religious Discrimination Bill that undermines those rights we already have, we need to fight even harder to make sure LGBTI anti-discrimination and anti-vilification laws are made much, much better.

LGBTI Vilification Australia June 2020

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

Footnotes:

[i] ‘Article 9. We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’ Darlington Statement, 10 March 2017.

[ii] ‘Understanding ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, 10 November 2017.

[iii] Somewhat confusingly, section 124A is found in Chapter 4, Part 4 of the Anti-Discrimination Act 1991 (Qld), titled ‘Racial and religious vilification’, which may lead some people to erroneously assume LGBT vilification is not prohibited.

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

[v] Clause 42(1)(b) of the Second Exposure Draft Religious Discrimination Bill.

[vi] Clause 42(1)(c) of the Second Exposure Draft Religious Discrimination Bill. For more, see: The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked.

[vii] You can see my submission to that inquiry, here.

[viii] Including:

Section 77 Conduct intended to incite racial animosity or racist harassment

Section 78 Conduct likely to incite racial animosity or racist harassment

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

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

Section 80A Conduct intended to racially harass

Section 80B Conduct likely to racially harass.

[ix] For a comparative analysis, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

Discrimination Under the Cover of Corona

Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

  1. Discrimination in employment

Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

  1. Discrimination in service delivery

One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

  1. Anti-LGBT vilification

The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

  1. Onus on complainants

Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

  1. Difficult to prove

Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

  1. Religious exceptions

Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

  1. Gaps in vilification protections

The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

**********

These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

The Inner-City Legal Centre in Sydney

The LGBTIQ Legal Service in Melbourne

The LGBTI Legal Service in Brisbane

The HIV/AIDS Legal Centre in Sydney

Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

Alternatively, you could try the Legal Aid services in your respective state or territory.

The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

Anti-Discrimination NSW

The Victorian Equal Opportunity and Human Rights Commission

The Queensland Human Rights Commission

The WA Equal Opportunity Commission

The SA Equal Opportunity Commission

Equal Opportunity Tasmania

The ACT Human Rights Commission

The NT Anti-Discrimination Commission

A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

Christian Porter

Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

[ii] For more on this subject, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

[iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

[v] For more, see Unfairness in the Fair Work Act.

Submission to NSW Parliament Inquiry into Gay and Transgender Hate Crimes Between 1970 and 2010 – 57th Parliament

Standing Committee on Social Issues

NSW Legislative Council

via email: socialissues@parliament.nsw.gov.au

Thursday 30 April 2020

 

To the Committee

Submission re Gay and Transgender Hate Crimes Between 1970 and 2010

Thank you for the opportunity to provide this submission on the subject of ‘Gay and Transgender hate crimes between 1970 and 2010’ in NSW.

I do so further to my original submission to the inquiry into the same subject, held in the previous Parliament.

I welcome the decision by the NSW Legislative Council to re-establish an inquiry into this important topic, and continue this work, this term.

In this submission, I endorse the submissions already made to the re-established inquiry by organisations that represent the LGBT community in NSW. This includes the submission made by ACON.

Specifically, I endorse ACON’s comments relating to Recommendation 3 of the Interim Report (‘That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally’), namely:[i]

The recommendation of the Interim Report relating to the responsibility of the New South Wales Police Force fails to recognise the historical context that this Inquiry examined. We would assert that the NSW Police Force also needs to consider the impact of their policing and its effect on our communities in the past. It is only in conjunction with ongoing reflection on these issues that skills and knowledge will have any effect on the relationship between our communities and the Police.

I also endorse ACON’s comments about the disappointing response to the Interim Report provided by the Minister for Police, the Hon David Elliott:[ii]

ACON believes the response does not adequately take into consideration the overall content of the Committee’s Report on the Inquiry, focusing only on a singular recommendation. The work of the Committee in putting together the Report reflects, to a degree, the personal stories and experiences of community members and organisations. While the Report goes some way to frame these stories in the context of problems with policing and our communities, the response from Minister Elliott downplays these experiences. The brevity of the response, and its ignorance of the full subject matter of the Report, is disappointing…

The crimes that occurred in the past are abhorrent, and the police response to these crimes was negligent at best. These facts are known by our communities. ACON was extremely disappointed that no such acknowledgement was included in Minister Elliott’s response.

Finally, I endorse the call made by ACON for the Committee to seek evidence from NSW Police to assess the four measures that are proposed in the one-page response by Minister Elliott, including how they are being implemented in practice:[iii]

  1. Revised bias crime indicator assessment tools supported by appropriate training packages
  2. A review of internal policies ensuring open-mindedness regarding motive
  3. Ongoing internal ethical and cultural training to specifically include LGBTIQ experiences
  4. Ongoing improvements to ensure bias crimes are centrally captured for state-wide investigations.

I also endorse the submission to the re-established inquiry made by the NSW Gay & Lesbian Rights Lobby. This includes their comments that:[iv]

The trust to which our community can place in the NSW Police Force will continue to suffer as long as the Force continues to come to grips with its culture of homophobia. As per our previous submission, we want to see ongoing education modules relating to LGBTIQ people as a standard of employment for every employee of NSW Police Force, from the Commissioner down. It is no longer good enough to have a handful of ‘trained’ GLLOs, unevenly distributed across the state…

An individual living in any corner of this state should be able to deal with any NSW Police Officer or any other public service employee with confidence, knowing they will be treated equally and respectfully.

I also endorse the NSW Gay & Lesbian Rights Lobby’s submission on the need for anti-discrimination law reform to help address homophobia and transphobia in NSW:[v]

[T]he tacit approval of discrimination must be avoided. Anti-discrimination laws, and their exemptions, have been the subject of wide-spread consideration in recent years. The swift public backlash to exemptions which permit discrimination by religious schools against LGBTIQ people are heartening. However, as yet, the GLRL eagerly awaits the removal of these exemptions. The research and lived experiences … demonstrate how discrimination permitted by laws such as the Anti-Discrimination Act 1977 (NSW) contribute to a culture which sees hate crimes committed against LGBTIQ people.

Finally, I support the submission made by the Pride History Group (submission number 15), and draw the Committee’s attention to the personal accounts of homophobia and transphobia, including homophobic and transphobic violence, which it contains.

In terms of my own substantive comments, I have two criticisms of the Interim Report which I would like to make to the Committee.

The first concerns observations, both in the Chair’s foreword, and in evidence provided by Assistant Commissioner Anthony Crandell of the NSW Police Force, that appears to frame NSW Police as passively reflecting the homophobia and transphobia of NSW society, rather than being an active contributor to this discrimination and intolerance.

For example, the Hon Shayne Mallard MLC wrote on page vii that:

For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time [emphasis added].

Similarly, on page 8, the Interim Report noted that:

While Assistant Commissioner Anthony Crandell, Police Education and Training, NSW Police Force acknowledged that the ‘police force reflected the community and was no different, with culture and values taking far longer to evolve.’

And again on page 45:

In evidence to the inquiry, Assistant Commissioner Crandell acknowledged that historically, the ‘NSW Police Force accepted a culture and society that marginalised people who happened to be sexually or gender diverse.’

He made further comments along the same lines on page 69:

Assistant Commissioner Crandell observed that at no stage had the NSW Police Force indicated that there was ‘no more homophobia, transphobia or that sort of sentiment’ within the force. Rather, he stated: ‘We reflect the community.’ He explained: ‘If we can say that about the community then perhaps I could say that about the police force, but you cannot say that about the community and I cannot say that about the police force…’

The overall impression of these comments is that NSW Police was only ever a ‘mirror’ reflecting society’s homophobia and transphobia back to itself, rather than an organisation with agency that itself generated homophobia and transphobia through its own culture, policies and operational decisions.

I would dispute this ‘mirror’ characterisation in at least two ways. First, the police force is a key shaper of societal attitudes. It plays a role in deciding those rules that are actively enforced, and those that are not (because there will always be far more ‘crimes’ committed than are investigated or prosecuted at any one time) – and this sends a signal to ordinary community members about what are serious breaches of the law versus minor infractions. In this way, the law enforcement actions of police carry a ‘normative’ value.

Indeed, this can be seen in prioritisation of anti-homosexual policing described on page 7 of the Interim Report:

Societal views and attitudes of the time were said to have been compounded by the leadership approach taken by senior policy officers. For example, during the 1950s, the then NSW Police Commissioner Colin Delaney voiced personal views regarding homosexuality that encouraged vigilant detecting and prosecution of homosexual acts and homosexual men by police. In 1958, Commissioner Delaney described homosexuality as “Australia’s greatest menace’; that homosexuals were a “cancer in the community”, who threatened to damage society’s “moral welfare.”

I submit it is impossible to argue that these comments, from the ‘top cop’ in the biggest jurisdiction in Australia, did not have an impact on societal homophobia – especially when it was reinforced by police entrapment and harassment of gay and bisexual men.

The second way in which NSW Police contributed to homophobia and transphobia in society (rather than the other way around), was by failing to properly investigate crimes against gay, bisexual and transgender victims of crime.

While I concede many people at the time may have considered LGBT people to be ‘lesser’ than other members of the community, the actions of NSW Police actually made them so under the law, and therefore actively encouraged others to treat them in the same way.

As noted by the Committee itself on page 35:

Throughout the inquiry the committee heard that police investigations into a number of suspected gay hate crimes during the 1980s and 1990s were inadequate, ineffective and in some cases absent almost entirely, with victims and loved ones never receiving adequate justice.

As described by Mr Larry Galbraith on page 32:

[E]fforts to encourage victims to report were often ‘undermined by the police themselves’, which in turn impacted on the willingness of victims to report crimes. Mr Galbraith recounted a sentiment expressed to him, that going to the police was like a ‘lucky dip – expect it was a lucky dip that too many gay men were not prepared to risk’. He explained: ‘For many gay men, it was sheer luck if the cop you saw took your matter seriously and was willing to do something about it.’

By failing to do their jobs and investigating crimes committed against anyone, irrespective of who they were, NSW Police sent a message to the community that crimes committed against gay and bisexual men, and transgender people, were less serious than crimes committed against cisgender and heterosexual people. That reflects the special role of police in law enforcement, and goes far beyond simply ‘mirroring’ intolerant attitudes.

For these reasons, it was incredibly disappointing to see on page 94 that key sections of the draft Interim Report were removed by Committee members prior to its publication.

This includes the [now deleted] observation that:

The committee accepts the view put forward by a number of inquiry participants that the homophobic culture within NSW Police during the time period examined has significantly obstructed the delivery of justice for members of the LGBTIQ community subjected to violence and hate crimes, in addition to further marginalising a community that already felt ‘rejected’ by many in society’.

Most disappointingly, it involved removing Finding 2:

That the NSW Police Force failed in its responsibility to properly investigate cases of historic hate crime and this has undermined the confidence of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities in the NSW Police Force and the criminal justice system more broadly.

I strongly urge the committee to make this finding as part of the re-established inquiry.

My second substantive criticism of the Interim Report relates to how it dealt with the issue of the gay panic, or ‘homosexual advance’, defence – or, more accurately, how it failed to properly address this topic.

The terms of reference specifically included the following:

(b) in relation to LGBTIQ hate crimes more generally:

i. what role the so-called ‘Gay panic’ defence played in the culture of LGBTIQ hate crimes between 1970 and 2010,

ii. how the so-called ‘Gay panic’ defence impacted the delivery of justice and the treatment of Gay men during LGBTIQ hate crime investigations and court proceedings

However, despite this term of reference, and Chapter 4 of the Interim Report discussing this issue at some length, the Interim Report does not include any findings or recommendations on this subject.

Even worse, once again strong statements on this subject, including a proposed Recommendation, were removed by the Committee prior to the public of the Interim Report (as noted on page 99 of the Report). These deleted paras stated:

While the Crimes Act 1900 has been amended to finally reflect the recommendations of both the 1995 NSW Attorney-General’s Working Party on Homosexual Advance Defence and the parliamentary inquiry into the partial defence of provocation, the committee acknowledges that there is a ‘gay panic’ defence legacy.

The committee supports the NSW Government’s 2013 directive for the NSW Law Reform Commission to conduct a comprehensive review of the law of homicide and homicide defences, as initially recommended by the 2013 Legislative Council Select Committee on the Partial Defence of Provocation to ensure that recent legal reforms have effectively removed any potential for further injustice to occur. The committee therefore recommends that the NSW Attorney General issue a reference to the NSW Law Reform Commission to require it to undertake a comprehensive review of the law of homicide and homicide defences in New South Wales.

Recommendation 10

That the NSW Attorney General issue a reference to the NSW Law Reform Commission to require that it undertake a comprehensive review of the law of homicide and homicide defences in New South Wales to ensure that recent legal reforms have effectively removed any potential for injustice to occur.

I believe that these paras, and the proposed Recommendation 10, were justified on the basis of evidence provided to the inquiry by ACON, Mr Larry Galbraith,[vi] and Mr Nathan Johnstone,[vii] among others.

I strongly urge the Committee to incorporate these comments, and to make a similar recommendation to the deleted Recommendation 10, in its Final Report.

This would highlight the deleterious impact of the gay panic defence, not just on the individual victims whose lives were treated as somehow being less worthy by the criminal justice system, but also the entire LGBT community because crimes against them were seen as less serious than crimes committed against others.

My final comment in relation to the Interim Report is to express my support for the position of the NSW Young Lawyers Human Rights Committee, as summarised on page 50:

The NSW Young Lawyers Human Rights Committee argued that there are limitations to the current GLLO program that need to be addressed. These include:

  • the name of the program creates barriers to access for bisexual, transgender, intersex and queer people
  • there are significant gaps in when and where GLLOs are available; and
  • there is limited evaluation of the performance of GLLOs in their role.

Given the perceived limitations of the GLLO program, the NSW Young Lawyers Human Rights Committee put forward three recommendations to improve its accessibility and effectiveness. These were:

  • Changing the name of the program to the LGBTIQ Liaison Officer program
  • Increasing the number of LGBTIQ liaison officers particularly in areas where gaps exist
  • Regularly evaluating the performance of LGBTIQ liaison officers and ensuring adequate support is provided for such officers to perform effectively in their roles.

I urge the Committee to adopt these suggestions in its Final Report. In this way, and provided they are subsequently adopted by NSW Police, it would help to strengthen this program – and, most importantly, to prevent some of the historical injustices heard by the Committee from being repeated in the future.

Thank you for taking this submission into consideration as part of this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

w1-truthandjustice

ACON’s In Pursuit of Truth and Justice Report, which documents gay and transgender prejudice killings in NSW in the late 20th century, can be found here.

Footnotes:

[i]  Submission Number 12, ACON, page 11.

[ii] Submission Number 12, ACON, pages 12-13.

[iii] Submission Number 12, ACON, pages 14-15.

[iv] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 6.

[v] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 8.

[vi] From page 61 of the Interim Report:

Mr Galbraith was of the view that the ‘gay panic’ defence ‘helped perpetuate the idea that… somehow the crime was lesser and therefore… should not be treated as seriously’. He added it was likely that the ‘gay panic’ defence fed ‘into a culture where other crimes against gay men should not be treated as seriously.’

[vii] Noting that the following para, describing Mr Johnstone’s evidence, was also removed from the final report:

Mr Nathan Johnstone, Committee member, NSW Gay and Lesbian Rights Lobby summarised for the committee the legacy of the “gay panic” defence:

I certainly think that it feeds into the level of distrust or the damage to the relationship between perhaps our community and not just police but perhaps the whole criminal justice system. You have got at least, I think it was, 13 people in about a three- or five-year period… who successfully used this before it was abolished. This is remarkable… That will still breed that culture and fuel that culture of distrust.

Don’t Rain on Our Parade

It’s reached that point in late February where, every day at 4:20pm, I visit the Bureau of Meteorology website to check the forecast for Saturday night’s Sydney Gay & Lesbian Mardi Gras Parade.

 

But, irrespective of whether the BoM says it will rain, hail, (smoke) or shine, there’s a much larger cloud hanging over Australia’s LGBTI community: the Morrison Government’s proposed Religious Discrimination Bill.

 

This legislation has the potential to adversely affect nearly every aspect of our existence.

 

From health-care, where it will allow doctors and pharmacists to deny hormone therapy, including puberty blockers, to trans and gender diverse people. And to refuse to provide access to PEP, and PrEP, exposing gay and bisexual men to greater risk of HIV transmission.

 

To the workplace, where employers and colleagues will be able to make comments that offend, humiliate, intimidate, insult or ridicule us, as long as those statements are based on religious belief.

 

A manager could tell a staff member that gay sex is sinful, and same-sex relationships are intrinsically disordered.

 

An interviewer may inform a trans applicant that gender is binary, and therefore their gender identity is not real.

 

A colleague could respond to a lesbian co-worker showing pictures of her family in the lunch-room that she has deliberately denied her children of a father, and will be condemned by god for her ‘lifestyle’ choices.

 

These are all entirely plausible scenarios. And all would be legally permitted under the Religious Discrimination Bill, because statements of belief are effectively exempt from all Commonwealth, state and territory anti-discrimination laws.

 

Indeed, statements of belief would be protected across all areas of public life, not just employment.

 

If this legislation passes, international tourists visiting Sydney this time next year could be subjected to degrading and demeaning comments anywhere and everywhere, at the airport, in the taxi or uber, on buses, trains and ferries, at the hotel or B&B, at tourist attractions, in cafes and restaurants, at shops and on the streets.

 

That sounds more like hate-song than ‘matesong’.

 

Except, once the party is over tourists will be able to leave these homophobic, biphobic, transphobic and intersexphobic comments behind, while LGBTI Australians will be stuck with them, like unshakeable glitter, invading every nook and cranny for years to come.

 

As a certain bank tried to remind us last week – and was then itself reminded by the community – ‘words do hurt’. It is unacceptable that our own Government is so focussed on ensuring we are all exposed to more hurtful words in our lives.

 

The Bill also further entrenches the special privileges granted to religious schools and other faith-based organisations to discriminate against teachers, other employees, students and, in some cases, people accessing their services, on the grounds of religious belief or lack of belief. Even where these services are being delivered using public funding.

 

It doesn’t explicitly grant new powers to religious schools to discriminate against LGBT teachers and students. But then it doesn’t need to, either – because those powers already exist under the Sex Discrimination Act and, despite promising to protect LGBT students before the end of 2018, the Morrison Government has so far failed to shield some of the most vulnerable members of our community.

 

The theme for this year’s Mardi Gras is ‘What Matters’. In pushing ahead with the Religious Discrimination Bill, despite criticism from LGBTI organisations and a wide range of other civil society bodies, while failing to protect students in religious schools, it is clear the right to be a bigot matters much more to them than the safety of LGBT kids.

 

Perhaps the most frustrating part of the current debate is that, from an LGBTI advocate’s perspective, it is a purely reactive one – defending existing rights under what are already-flawed anti-discrimination laws, rather than trying to make those laws better (for example, including bisexual, non-binary and intersex people in NSW’s out-dated Anti-Discrimination Act).

 

It takes attention away from other urgent law and policy reform, too.

 

We shouldn’t forget that this Saturday’s march takes place in a state where trans people still need to have surgery – which is both expensive, and for some people, unwanted – before being able to update their identity documentation.

 

And in a country where children born with variations in sex characteristics continue to suffer massive human rights violations, including coercive, intrusive and irreversible surgery and other medical treatments.

 

The Religious Discrimination Bill will take LGBTI rights in Australia backwards, when there is still so much progress left to be made, on these and many other issues.

 

It’s time the Morrison Government abandoned this legislative attack on our community, and instead worked with us to achieve positive change – maybe then we can finally celebrate under clear skies.

 

Mardi Gras flag

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Submission to Victorian Inquiry into Anti-Vilification Protections

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

Submitted via: avpinquiry@parliament.vic.gov.au

Thursday 19 December 2019

 

To the Committee

 

Inquiry into Anti-Vilification Protections

 

Thank you for the opportunity to make a submission on this important subject.

 

I do so as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, having previously served on the Committee of Management of the Victorian Gay & Lesbian Rights Lobby (2004-05, and 2007).

 

In this submission, I will primarily focus on term of reference 8: ‘Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act.’

 

As the Committee is aware, Victoria currently only provides protection against vilification on the basis of two attributes – race (section 7) and religion (section 8) – under the Racial and Religious Tolerance Act 2001 (Vic).

 

From an LGBTI perspective this is incredibly disappointing, especially because the similar absence of LGBTI anti-vilification protections under Commonwealth law, which only covers race,[i] means that lesbian, gay, bisexual, transgender and intersex Victorians currently have no vilification protections at either level.

 

This stands in contrast to the laws of several other Australian jurisdictions.

 

For example, Tasmania protects against ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ sexual orientation,[ii] gender identity[iii] and intersex variations of sex characteristics.[iv]

 

Tasmania’s best practice legislation also prohibits ‘conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute’, which again includes sexual orientation, gender identity and intersex variations of sex characteristics.[v]

 

The Australian Capital Territory protects against ‘incite[ment of] hatred toward, revulsion of, serious contempt for, or severe ridicule of’ persons on the basis of gender identity,[vi] intersex status[vii] and sexuality.[viii]

 

Although I note that intersex advocates have called for protection of the attribute of ‘sex characteristics’,[ix] rather than ‘intersex status’, reflecting both the biological rather than identity-based nature of variations of sex characteristics, and to promote consistency with the Yogyakarta Principles plus 10.[x]

 

Queensland also prohibits the ‘incite[ment of] hatred towards, serious contempt of, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person of members of the group.’[xi]

 

Meanwhile, NSW has adopted two separate, and in some ways contradictory, approaches to vilification. It provides civil protection against vilification (which includes ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of’) to binary[xii] transgender people,[xiii] and lesbians and gay men.[xiv]

 

On the other hand, in 2018 NSW Parliament amended the Crimes Act 1900 to provide that ‘[a] person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence’ and nominated sexual orientation,[xv] gender identity[xvi] and intersex status.[xvii]

 

Overall, then, LGBTI people are protected against vilification in both Tasmania and the Australian Capital Territory, LGBT people are protected in Queensland, and lesbians, gay men and some trans people have access to civil protection in New South Wales, while all LGBTI people are covered by the narrower criminal offence of ‘publicly threatening or inciting violence’ in that state.

 

Of course, the fact other jurisdictions have adopted a different approach to this issue is not necessarily a compelling argument that Victoria should do the same. However, I do support such an expansion for two main reasons.

 

First, in principle, there is no reason why vilification on the basis of race or religion should be treated any differently to vilification on the basis of sexual orientation, gender identity or sex characteristics.

 

Vilification on any of these attributes is serious, and racial or religious vilification is no more serious than anti-LGBTI vilification. This is especially so given the harm caused by each type of vilification can be severe, and therefore the conduct which contributes to this harm should be prohibited, irrespective of whether it is racist, anti-religious or homophobic, biphobic, transphobic or intersexphobic.

 

Second, in practice, lesbian, gay, bisexual, transgender and intersex Australians remain exposed to unacceptably high rates of discrimination and vilification on the basis of who they are.

 

This was particularly demonstrated during the Commonwealth Government’s 2017 Same-Sex Marriage Postal Survey, and its lingering aftermath.

 

This unnecessary, wasteful and divisive vote on the rights of a minority group encouraged people to ‘have their say’ about LGBTI Australians, and inevitably (and, it should be noted, entirely predictably) stirred up significant amounts of public homophobia, biphobia, transphobia and intersexphobia against us.

 

Sadly, once the genie of anti-LGBTI bigotry was deliberately let out of the bottle by the Turnbull Liberal-National Government, it will take the rest of us many years, if not decades, of concerted effort to put it back in again.

 

This can be seen by the ongoing hate-based campaign targeting trans and gender diverse people, and especially trans children, which appears on an almost daily basis in our nation’s newspapers, and elsewhere.

 

As we enter the 2020s, the homophobia, biphobia, transphobia and intersexphobia whipped up by the Commonwealth Government in the last decade still haunts us, and will likely continue to do so for some time yet.

 

For both of these reasons, principled and practical, I urge the Victorian Parliament to follow the lead of other jurisdictions and introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics.

 

Recommendation 1: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of:

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

 

I note that the Racial and Religious Tolerance Amendment Bill 2019, introduced by Fiona Patten MLC, proposes to do exactly that. It also proposes to add gender, and disability, to the list of attributes that would be protected against vilification under that legislation.

 

While I am not an expert on gender or disability-based vilification, for (at least) the first of the reasons outlined above, I can see no good reason why Victorians should not also be protected against vilification on the basis of these attributes.

 

Recommendation 2: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of gender and disability.

 

One final issue I would like to address in this submission also arises through Ms Patten’s Racial and Religious Tolerance Amendment Bill 2019, and specifically relates to proposed amendments to section 24 of the principal Act which creates the offence of serious racial vilification.

 

These amendments would add the words ‘or recklessly’ to, and remove the words ‘the offender knows’ from, the fault element of this offence.

 

I support both changes. The first change would help create consistency with the offences established in other jurisdictions (including the recently-introduced NSW Crimes Act 1900 provisions).

 

The second would remove the ‘offender knows’ subjective test from this offence, which is important because such harmful conduct should be prohibited irrespective of whether the specific offender knew that was the likely outcome.

 

Recommendation 3: That serious vilification offences in the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit intentionally or recklessly engaging in conduct that is likely to incite hatred, or to threaten, or incite others to threaten, physical harm or harm to property.

 

Thank you for taking this submission into consideration as part of this inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely

Alastair Lawrie

 

Fiona Patten

Fiona Patten MLC, whose Racial and Religious Tolerance Amendment Bill 2019 would protect LGBTI Victorians against vilification.

 

Footnotes:

[i] Section 18C Racial Discrimination Act 1975 (Cth).

[ii] Section 19(c) Anti-Discrimination Act 1998 (Tas).

[iii] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[iv] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[v] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[vi] Section 67A(1)(b) Discrimination Act 1991 (ACT).

[vii] Section 67A(1)(d) Discrimination Act 1991 (ACT).

[viii] Section 67A(1)(g) Discrimination Act 1991 (ACT).

[ix] Darlington Statement, March 2017, Article 9: ‘We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’

[x] Which defines sex characteristics as ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ Yogyakarta Principles plus 10, 10 November 2017.

[xi] Section 124A Anti-Discrimination Act 1991 (Qld).

[xii] Because the definition of transgender in section 38A only protects a person:

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

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

[xiii] Section 38S Anti-Discrimination Act 1977 (NSW).

[xiv] Section 49ZT Anti-Discrimination Act 1977 (NSW).

[xv] Section 93Z(1)(c) Crimes Act 1900 (NSW).

[xvi] Section 93Z(1)(d) Crimes Act 1900 (NSW).

[xvii] Section 93Z(1)(e) Crimes Act 1900 (NSW).

She who should not be named (on a tennis stadium)

The 2020 Australian Open starts tomorrow. As a long-term tennis fan, it is one of my favourite times of the year (although sadly I won’t be there in person this time around). As a long-term LGBTI advocate, however, I am not looking forward to the next fortnight – primarily because there will be considerable attention on a certain former Australian women’s tennis player.

Not just because the third largest court is named after her, but also because this year marks the 50th anniversary of her calendar-year grand slam – which was, admittedly, a remarkable achievement (for context, only one singles player, male or female, has repeated this feat in the half-century since: Steffi Graf in 1988).

Given we won’t be able to avoid this topic in the days ahead, I thought I would share my perspective on what should happen when Tennis Australia commemorates Margaret Court’s accomplishment, and why they should permanently remove her name from Margaret Court Arena.

I should start by saying what this is not about. It’s not about her opposition to marriage equality. Despite seeking to discriminate against LGBTI couples under secular law, she was entitled to her opinion, no matter how wrong it was (and thankfully the majority of Australians decided she was indeed very wrong).

On the other hand, it is about Margaret Court being a vocal opponent of the equalisation of the age of consent in Western Australia in 2002 (which is actually when, as a queer activist at university, I first came across her bigoted views). For those who don’t know, she literally campaigned for young gay and bisexual men, aged 16 to 20, to remain subject to criminalisation, including the threat of imprisonment, simply because of who they were.

That, to me, went beyond the pale. This was not simply a difference in policy – she used her position of influence in political debate to target vulnerable members of our community. That incident alone should be sufficient to mean she is not celebrated by Tennis Australia – or indeed anyone with a conscience.

Although unfortunately it was not the last time Margaret Court would attack LGBT young people. As recently as three weeks ago, she reportedly described trans kids as being the work of the devil (“That LGBT in the schools, it’s of the devil, it’s not of God… you know when children are making the decision at seven or eight years of age to change their sex. Just read the first two chapters of Genesis, that’s all I say. God made male and female”).

Court’s list of tennis records might be long, but her record of homophobic, biphobic and transphobic statements is much, much longer (noting that these are just a couple of examples out of many I could have chosen).

Of course, some people might respond by saying that the above actions are unrelated to tennis, and she should be judged solely on her sporting career. The only problem with this defence is that she has an equally lengthy history of anti-LGBT prejudice in relation to tennis.

As far back as 1990, Court criticised out lesbian champion Martina Navratilova (“a great player but I’d like someone at the top who the young players can look up to. It’s very sad for children to be exposed to homosexuality. Martina is a nice person. Her life has just gone astray”) and famously said that lesbians were ruining tennis.

In the three decades since, her views have not evolved, although who she attacks has – Margaret Court now adds trans tennis players, and trans women athletes in particular – to her growing list of targets (“ And you know with that LGBT, they’ll wish they never put the T on the end of it because, particularly in women’s sports, they’re going to have so many problems”).

But, out of the many hateful and hurtful ‘contributions’ Margaret Court has made to public life over the years, there is one that stands out in my memory, for all the wrong reasons. In 2013, following the birth of Casey Dellacqua and her partner Amanda Judd’s first child, Margaret Court wrote the following newspaper letter to the editor:

 

Fathers for babies

The article (Dellacqua, partner welcome baby boy, 29/8) rightly celebrates the birth of a child. Yet it is with sadness that I see that this baby has seemingly been deprived of his father.

If we continue to dismantle the traditional family unit as old fashioned, archaic and no longer even necessary or relevant, we will create a fatherless generation.

Indeed, the lines are becoming increasingly blurred as the march towards such partnerships, even gay marriage, is fuelled by minority voices rising in opposition to respected Christian beliefs which many cultures also believe.

For the person who is birthed with no exposure, or even acknowledgement, of their natural dad there will always remain questions as to their identity and background.

Personally, I have nothing against Casey Dellacqua or her “partner”.

I simply want to champion the rights of the family over the rights of the individual to engineer social norms and produce children into their relationships.

As a patron of the Australian Family Association, I really want to see a society where traditional family values are still celebrated and every child has the best possible start in life.

Margaret Court, Victory Life Centre

 

Note this was not simply an expression of her views about ‘rainbow families’ in general, it was specific criticism of one such family in particular. It was a pre-meditated attack on a couple at a time when they should have been celebrating something precious and wonderful, not being subjected to unfair commentary because of their sexual orientation.

And, contrary to Court’s protestations (‘I have nothing against Casey Dellacqua or her “partner”’), the use of scare quotes there says everything you need to know about her level of disrespect towards them.

Nor can this episode be divorced from Court’s tennis career. The letter was written by a former Australian tennis player, about a then-current Australian player – and this context was no doubt influential in ensuring it was published.

The truth is that, as much as Margaret Court was a champion on the tennis court, she has been the exact opposite off it. And, because of her actions – including the attack on Casey Dellacqua and her family – it is impossible to separate the two.

That is why, whenever Tennis Australia chooses to commemorate the 50th anniversary of Margaret Court’s calendar grand slam during the next fortnight, I hope the crowd at Melbourne Park (respectfully) turn their backs on her. And if she is given the opportunity to speak, I hope they cover their ears too – because she has abused far too many platforms, over far too many years, to demean and denigrate lesbian, gay, bisexual and transgender Australians.

It is also why she should not be named above the third largest court there. While Court may have been a tennis star in the 1960s and 1970s, everything she has done since means she has nothing to offer in the 2020s and beyond (she is definitely not a role model for the current generation of players – ask yourself, have you ever heard any Australian player, including our recent champions Sam Stosur and Ash Barty, say they look up to Margaret Court? Definitely not).

What makes this decision even easier is that there is such a clear alternative. A seven-time major winner in singles, and former world number one, from the 1970s and 1980s. An Aboriginal champion, who used her post-playing career to give back to Aboriginal young people (her Companion of the Order of Australia recognised her “eminent service to tennis as a player at the national and international level, [and] as an ambassador, supporter and advocate for the health, education and wellbeing of young Indigenous people through participation in sport, and as a role model”).

Once the 2020 Australian Open wraps up on Sunday February 2, it’s time to take down the signage for Margaret Court Arena, and put up a new name in its place: Evonne Goolagong Cawley Arena.

Margaret-Court-Arena-Gal2

2020 should be the last year Margaret Court’s name appears above the third court at Melbourne Park.

Submission to Victorian Government Consultation on Banning Conversion Practices

The Victorian Government is currently consulting on legislative options to ban conversion practices, including ‘ex-gay therapy’ and ‘ex-trans therapy’. Submissions close 24 November 2019, with more details here. The following is my personal submission:

 

**********

 

Thank you for the opportunity to provide this submission in response to the Discussion Paper: ‘Legislative options to implement a ban of conversion practices.’

 

I write this as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, as someone who survived five years at an explicitly homophobic religious boarding school in Queensland in the early 1990s,[i] and as someone who has written on this issue previously.[ii]

 

While I am not Victorian, given early-adopting jurisdictions will be effectively setting the standard for other states and territories to follow (including my current state of NSW), I am interested to ensure that the scheme introduced by the Victorian Government is as strong as possible.

 

On that basis, my answers to the consultation questions are as follows:

 

Do you agree with the HCC’s definition?

Would you suggest any changes?

Should the definition of conversion practices be broad enough to capture the practices that do not involve health services or counselling?

What treatments and practices should be expressly excluded from the definition?

 

The Health Complaints Commissioner’s definition appears reasonable. It is particularly important that the second part of the definition – ‘including efforts to eliminate sexual and/or romantic attractions or feelings toward individuals of the same gender, or efforts to change gender expressions’ – is retained.

 

This is because the harms caused by conversion practices arise exclusively in the context of activities trying to prevent people from identifying as lesbian, gay, bisexual or transgender.

 

There is no evidence of harmful ‘conversion practices’ in the other direction (forcing people to be LGBT), and therefore care should be taken to ensure that support services for LGBT people, and especially LGBT children and young people, are not inadvertently captured in any definition of conversion practices.

 

The definition should, however, capture anti-LGBT conversion practices outside health services or counselling. Conversion practices are basically psychological torture and as such they should not be acceptable in any context.

 

There may nevertheless be scope for increased penalties, or additional regulatory responses, where these practices occur in health services or counselling given the duty of care involved in these settings.

 

Who do you think should be protected?

Should protection be limited to children and people experiencing vulnerability? If so, what vulnerable groups should be included?

Should protection be available to all members of the community?

In what ways do you think the issue of consent is relevant to determining who should be protected?

 

I think all people should be protected, including adults. Again, my starting position is that conversion practices are psychological torture. And torture is not acceptable in any context, or with respect to any victim.

 

We should also remember that an adult who seeks out conversion practices has likely grown up in a homophobic, biphobic or transphobic environment, and that the cumulative effect of years or even decades of this bigotry and intolerance is probably the primary causative factor in them agreeing to participate in such harmful activities. It is therefore not truly free and informed consent.

 

Of course, there are some groups who are particularly vulnerable, including children as well as people with mental ill-health or other reasons for diminished legal capacity. The penalties for engaging in conversion practices aimed at these vulnerable groups could be made higher than for other adults (for example, by making the vulnerability of the victim an aggravating factor in sentencing).

 

Who do you think should be banned from providing conversion practices?

Specific professionals or persons? Or everyone who offers conversion practices?

 

These practices should be banned by anyone. There is no justification to allow psychological torture in any context.

 

There may however be reasons to provide additional regulatory responses for health practitioners, including counsellors, who engage in these practices (including referring people to these practices). This could include being suspended, or deregistered from providing any health services in the future, in addition to criminal or other penalties which apply to everyone.

 

Do you think conversion practices should be regulated wherever they occur or only in certain contexts or places?

 

If only health professionals are regulated, then again it should not matter where the conversion practices take place, because psychological torture should be prohibited wherever it occurs. It is a breach of the duty to care for patients for health practitioners to engage in these practices, or to refer others to them, in any context or place.

 

Do you think conversion practices should be regulated through criminal law, civil regulatory schemes or civil laws, or a combination of these?

What aspects of each approach would be effective in regulating conversion practices?

What aspects of each approach would be less effective in regulating conversion practices?

 

Given the abhorrent practices involved, and their harmful consequences on the lives of victims, I believe there should be criminal penalties for providing conversion practices, and for referring people to conversion practices.

 

This is a proportionate response to the seriousness of the underlying offence, and necessary to send a signal to the community that such practices will not be tolerated, any time, any where.

 

However, acknowledging the potential difficulty in criminal prosecution in these areas, these laws should be supplemented by civil regulatory sanctions, enforced by the Health Complaints Commissioner, Commissioner for Children and Young People or another similar body.

 

Finally, victims of such practices should be able to make claims of negligence against the people providing them, especially where it involves health practitioners and/or counsellors. Again, this is in recognition of the damage caused to their lives. Any laws necessary should be changed to allow this outcome, and provide financial redress for the victims.

 

What rights do you think are relevant to consider when determining how best to implement a ban of conversion practices?

Can the impact on these rights be justified in light of the harm conversion practices cause?

 

The most important rights in terms of this debate are the right to health, and the right to non-discrimination (given conversion practices are an attack on people with diverse sexual orientations and/or gender identities).

 

I acknowledge that there may be an adverse impact on freedom of religion, in that some individuals and organisations may assert that these practices are in line with their religious beliefs against LGBT identities.

 

However, their religious beliefs do not justify the imposition of psychological torture on others, including children and vulnerable people. In the same way that religious beliefs do not justify physical torture, including female genital mutilation, a position already reflected in Australian law.[iii]

 

Are there other matters that you consider critical for the design of legislation or effective implementation?

 

I reiterate my view that the approach adopted in states like Victoria will exert considerable influence on the position that will ultimately be embraced in others states and territories. As such, I strongly encourage the Victorian Government to introduce the strongest possible ban on these abhorrent practices, for the benefit of LGBT people nation-wide.

 

Thank you in advance for taking this submission into consideration. Please do not hesitate to contact me at the details supplied should you require clarification or additional information.

 

Sincerely

Alastair Lawrie

 

Footnotes:

[i] See The Longest Five Years.

[ii] See Criminalising Ex-Gay Therapy August 6, 2018; Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation 16 June, 2014.

[iii] And, hopefully, one day religious beliefs will not be used to justify male genital mutilation/circumcision either.

Stonewall 50: Bouquets & Bricks

Today marks 50 years since the Stonewall Riots, a key moment in the history of LGBTI rights activism, both in the United States and around the world.

In a different world I had hoped to be in New York, attending the World Pride celebrations marking this significant anniversary – although unfortunately sometimes the more mundane parts of life, like mortgage payments, have other plans.

I wanted to be there to pay my respects to the activists who have come before us, and on whose shoulders we stand, who have paved the way towards the improved rights and increased acceptance many of us enjoy today.

Even though I may not be there in person I can still honour their achievements in my own small way, on this somewhat niche LGBTI rights blog, on the other side of the globe.

Thank you to the brave people at the Stonewall Inn who, in the early hours of June 28 1969, fought back against police oppression, and fought to end the injustice that was ubiquitous in the lives of queer people at that time.

Thank you to the trans and gender diverse people, the drag queens and the people of colour who have been at the forefront of this battle from the very beginning.

Of course, the Stonewall Riots was not the first instance of LGBTI people fighting back against abuse and mistreatment. Thank you too to the people at Compton’s Cafeteria, and Cooper Do-nuts, and likely other instances of queer rebellion that have been lost to history, because we were not the ones who were writing it.

Nor was Stonewall the starting point for LGBTI rights within the United States, with groups like the Mattachine Society and Daughters of Bilitis undertaking the comparatively-boring legal reform work – but who, in doing so, took far greater risks than we could possibly appreciate today.

Obviously, the story of LGBTI activism did not begin and does not end with the US either (a mistake we make all-too-often, especially on anniversaries like this).

Thank you as well to the countless campaigners for our rights around the world, from the advocates for homosexual recognition in Germany in the second half of the 19th century, to the courageous people fighting for decriminalisation in the 68 UN Member States where homosexuality remains criminalised today.

Looking closer to home, Australia’s most-famous instance of queer people celebrating amidst the spectre of police brutality had its own 40th anniversary just last year. Thank you to the 78ers, whose courage at that first Sydney Gay Mardi Gras helped inspire the generations here that followed.

Just as in the US, however, Mardi Gras was not the starting point for LGBTI rights in Australia.

Thank you to the people who stood up in the preceding decade, from the formation of the Homosexual Law Reform Society of the ACT in July 1969 (just one month after Stonewall, and who will celebrate their own 50th anniversary in four weeks’ time), through the early 70s activism of groups like Campaign Against Moral Persecution (CAMP for short), to the decriminalisation advocates in South Australia and elsewhere.

Thank you to the people who responded to the HIV/AIDS crisis in the 1980s, which decimated our community when it had only just begun to emerge from the darkness. You fought for your lives – and for all of us – and in doing so you kept the (candle)light alive.

Thank you to the HIV activists today, who understand that this struggle is not over.

Thank you to the law reformers, who over decades have secured the building blocks of legal equality, from anti-discrimination protections, to relationship recognition and most recently the right to marry the person we love.

Thank you to the trans and gender diverse activists, who have been fighting – against even greater resistance – for the right to live the lives you were always meant to. The battles for access to birth certificates and identity documentation, and health care, are not over.

Thank you to the intersex activists whose struggles seem bigger still. Many of whom are survivors of gross violations of the human right to bodily autonomy, but who speak out to stop those same coercive surgeries and treatments from being inflicted on others. And who must fight against the indifference of politicians, the arrogance of medical professionals and too-often the ignorance of other members of the LGBTI community.

Thank you to the queer people of colour, and especially to Aboriginal and Torres Strait Islander LGBTI people, who fight not just against homophobia, biphobia, transphobia and intersexphobia, but also against the racism that lies at the heart of our country (and, sadly, within our own community too).

As can be seen from the above, the incredible progress made so far on LGBTI rights has been achieved because of the work of more than any one particular individual or organisation. We have all played a role.

From the brave people who threw the first bricks at Stonewall. To others who have thrown bricks through the legal, social and cultural discrimination which LGBTI people all-too-commonly faced. And everyone who has thrown their own bricks through the closet of invisibility and shame that too many people have endured.

With those bricks we have built ourselves a community, and a home, where more people than at any point in history can feel accepted for who they are, no matter their sexual orientation, gender identity or sex characteristics.

But, as we all know, the house of LGBTI rights remains incomplete – there is still much unfinished business, in Australia, the United States and around the world, before all lesbian, gay, bisexual, transgender and intersex people can finally be considered ‘free & equal’.

Which means we need more (metaphorical) brick-throwers, to smash down the walls of homophobia, biphobia, transphobia and intersexphobia that keep many LGBTI community members imprisoned.

So today, as we celebrate Stonewall 50, and give thanks to the LGBTI activists who have made our world a better place, we should take a moment to reflect on what each of us can do, what we should do, and what we must do, to carry on their work.

the_stonewall_riots_didnt_start_the_gay_rights_movement_1050x700

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Treasurer Frydenberg, Please Abolish the National School Chaplaincy Program

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

 

The Morrison Liberal-National Government is currently calling for Pre-Budget Submissions for the 2019-20 Commonwealth Budget. Submissions close 1 February 2019 – for more details click here.

 

Please see my submission below, which I have also sent to the Leader of the Opposition Bill Shorten and Shadow Treasurer Chris Bowen.

 

**********

 

Treasurer Josh Frydenberg MP

c/- prebudgetsubs@treasury.gov.au

 

Monday 28 January 2019

 

Dear Treasurer

 

Please Abolish the National School Chaplaincy Program

 

Thank you for the opportunity to provide a submission ahead of the upcoming 2019-20 Commonwealth Budget.

 

In this submission I will make the case for what should be the easiest Budget decision of them all – to save $247 million over four years by abolishing the National School Chaplaincy Program.

 

There are multiple reasons why this entirely unjustified program should be axed, with most stemming from the requirement that any person who acts as a school chaplain must be religious. This requirement is completely inappropriate in a contemporary society.

 

In theory, these positions are supposed to be about improving student welfare. In practice, they are about promoting Christian theology, including in supposedly secular public schools.

 

As the Guardian Australia reported, in 2015 the Education Department revealed that of 2,336 chaplains funded by the Commonwealth Government, 2,312 (or 99%) were Christian, with the negligible remainder split between Islam (13), Judaism (eight) and one each from Bahai, Buddhism and Aboriginal traditional religions.

 

As a program it has already been found to be unconstitutional on multiple occasions (thanks to the ongoing efforts of the courageous Ron Williams). Successive Commonwealth Governments have responded by resorting to increasingly intricate arrangements to circumvent these findings.

 

Indeed, on a prima facie reading, the program is clearly in breach of section 116 of the Constitution, which provides that:

 

‘Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’

 

The only reason the program has not been found unlawful because of section 116 is because the money to fund it is now funnelled through grants to state and territory governments.

 

Instead of engaging in this intellectual dishonesty, the Commonwealth Government should instead honour the spirit of the Constitution. As Treasurer, you should acknowledge that the National School Chaplaincy Program imposes a religious test on positions that are paid for with taxpayers’ monies – and consequently abolish it.

 

The religious requirement for chaplaincy positions presents another legal problem, and that is it is potentially in breach of state and territory anti-discrimination and equal opportunity laws,[i] because it actively discriminates against people with different religions, or who have no religion.

 

This is currently being tested in the Victorian Civil and Administrative Tribunal, with a complaint against Access Ministries by a person who was barred from applying for a position with them because she was not Christian. As noted in that complaint:

 

‘The discrimination is not reasonably necessary for Access Ministries to comply with the doctrines, beliefs or principles of the religion associated with Access Ministries, because the work of a school chaplain takes place in a non-religious context and workplace, namely a government school, with a student population made up of students with a variety of religious affiliations and with no religious affiliation.’

 

Hopefully, that challenge is successful. Even if it fails, it is likely that the lawfulness of the National School Chaplaincy Program will come under fresh scrutiny as the Commonwealth Government establishes a new Religious Discrimination Act, as part of its response to the Ruddock Religious Freedom Review.

 

It is impossible to argue the program does not discriminate on the basis of religious belief (or lack thereof), when such discrimination lies at its heart. There must be no special loopholes as part of any new Commonwealth Religious Discrimination Act merely to allow discrimination against non-Christians, agnostics and atheists alike to continue. Nor should there be taxpayer funding for this discrimination in the Commonwealth Budget.

 

A third reason why the National School Chaplaincy Program should be abolished is because of its internal contradiction, with people hired as school chaplains because they are religious then required not to ‘proselytise’ their beliefs as part of their role.

 

There have been multiple reports, over many years, of chaplains in public schools completely disregarding this prohibition.

 

From 2011The United Christian Education Foundation is the chaplaincy provider at Ulladulla High School on the New South Wales South Coast.

 

A newsletter on its website reads: “There is much to be thankful for as we look back on another year of bringing the great news of Jesus to the precious young people at Ulladulla High School. The other week a Year 7 boy put up his hand and said, ‘I asked Jesus into my life the other day’.

 

“A Year 8 girl told me about the peace she now has since becoming a Christian,” the newsletter continues.

 

Proselytising is against the federal Education Department’s guidelines on chaplaincy, but some students at the Ulladulla school believe the chaplain is there to convert them.

 

“[It is] basically to make people become of his religion. That’s it really. To convert people to their religion,” said Max, a Year 8 student.

 

Nick, a maths teacher at the primary school nearby, was shocked when the chaplain came to his school and invited the children to pray.

 

“The chaplain was addressing the Year 6 children, a majority of those children would be going to the local high school and he did say that he was available for children there, and they can come to him and pray with him, or if not, he would pray for them,” he said.

 

And from just last year: Generate Ministries, the largest provider of school chaplains in NSW, has begun offering a “faith building” course to students and told them their chaplain is one way of accessing the program.

 

The subject, called Veta Morpheous, is a certificate III course for HSC students developed by the Victorian-based Veta Youth which says the studies enable students to “really invest in your spiritual growth and to explore your faith with adult mentors” and “grow in your Christian life.”

 

“It’s a space… to discover who you are in Christ, and to test your faith in real life,” Veta Youth says.

 

In a now-amended statement on its website Generate Ministries said: “The key to the program is the local ministry supervisor and the peer group supervisor… this is often the local minister, Chaplain.”

 

When contact about the possible breach, Generate Ministries said it only intended for chaplains funded under a separate NSW wellbeing program to offer the course. However that program also forbids chaplains from proselytising.

 

There are countless other examples of chaplains engaged in proselytising behaviour. Perhaps just as concerning is what is not considered proselytising, and therefore deemed acceptable, with then-Education Minister Simon Birmingham telling Senate Estimates that proselytising is only ‘attempt[ing] to convert someone to a particular religion or belief’ and that quoting the Bible is not necessarily proselytising.

 

I am sure many parents with children attending public schools would be horrified by that distinction.

 

To some extent, it is difficult to blame chaplains for engaging in this behaviour. Telling them not to proselytise – when that activity forms such a central part of their identity, their ‘mission’ – is like telling News Corp columnists not to engage in culture wars. It is their raison d’etre, and they will continue to do so for as long as they draw breath (and expel hot air).

 

The fault instead lies with the Howard Liberal-National Government who first funded this program, and all subsequent Governments who have extended it, knowing that employing chaplains in schools will inevitably lead to proselytising to children, irrespective of what any guideline might say.

 

You will own your share of that blame if you do not abolish the National School Chaplaincy Program in your first Budget as Treasurer, expected in April 2019.

 

The fourth problem is a much more fundamental one, and that is, if the aim of the program is to promote student welfare, the National School Chaplaincy Program is a poorly-designed, and ineffective, approach.

 

It is an opt-in program, and even then the funding provided does not pay for a full-time position (with schools expected to fundraise to supplement the Government’s grant). Given the people hired must satisfy a religious test, it is also not open to all of the best-qualified people for the role,[ii] meaning some students will inevitably end up with second-rate support.

 

In short, it is a half-hearted attempt to address what is a genuine challenge.

 

If the Morrison Liberal-National Government was actually serious about student welfare, it would provide funding for school counsellors in all schools, and employ people based on their qualifications not their religious beliefs. If you are not prepared to do that, it is clear student welfare is not the primary focus of the program, and it must therefore be abolished.

 

My fifth and final concern is a much more personal one and that is, as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the National School Chaplaincy Program is inherently dangerous for LGBTI students.

 

This is not to say that all chaplains are homophobic, biphobic, transphobic or intersexphobic. I am sure there are many who are genuinely inclusive and respectful of all students irrespective of sexual orientation, gender identity or sex characteristics.

 

However, I am saying there have been too many examples, over too many years, of people employed under the National School Chaplaincy Program being harmful to young LGBTI people. In some cases, the organisations providing chaplains across different schools are themselves explicitly homophobic and transphobic.

 

For example, from 2014: ‘Citing a survey from gay rights organisation All Out, Senator [Lousie] Pratt said “students described chaplains helping them to ‘pray the gay away’ and advising them to sleep with a member of the opposite sex to ‘correct’ their same sex attraction”.’

 

And this, from 2015‘The school chaplaincy program in NSW is dominated by Generate Ministries, which lodged a submission to an Australian Human Rights Commission inquiry into religious freedom stating homosexuality is “a serious sin”.’

 

How could any LGBT student attending a school with a Generate Ministries chaplain ever feel comfortable seeking support from their supposed school welfare officer when that person thinks they are intrinsically sinful?

 

Meanwhile, from last year‘In one disturbing case, a transgender child was forced into seven sessions of chaplaincy counselling at her religious school – without her parents’ knowledge – in a bid to stop her from transitioning…

 

Canberra’s response [not to take action against gay conversion therapy] belies the fact that gay conversion ideology has been quietly pushed in schools as part of the federal government’s chaplaincy program.’

 

There are plenty of other examples of the National School Chaplaincy Program being the source of homophobia and transphobia. This is shameful, but not nearly as shameful as the fact taxpayers’ money – money from people like me – is being used to inflict these harms on young LGBTI people.

 

It is your moral responsibility, as Treasurer, to cease funding for a program that, rather than improving student welfare, contributes to the mistreatment of some of the most vulnerable members of society.

 

**********

 

As I have outlined above, the only reason the National School Chaplaincy Program remains constitutional is because successive Commonwealth Governments have chosen to circumvent decisions of the High Court.

 

It is possible the program is unlawful under state and territory anti-discrimination laws, because it actively discriminates on the basis of religious belief, and it would likely fall foul of any new Commonwealth Religious Discrimination Act.

 

The National School Chaplaincy Program also suffers from an insurmountable internal contradiction, where people whose primary purpose is to proselytise are politely asked not to. It is unsurprising that many fail to obey this direction.

 

It is a poorly-designed, and ineffective, student welfare program; if Governments were actually serious about student welfare they would fund qualified counsellors in all schools. The National School Chaplaincy Program is also dangerous, and harmful, to lesbian, gay, bisexual, transgender and intersex students.

 

While these may sound like challenges, they also represent an opportunity for you, as Treasurer, to make perhaps the easiest saving of a quarter of a billion dollars that anyone could ever make. The only question is whether you are up to the task.

 

Thank you in advance for taking this submission into consideration.

 

Sincerely

Alastair Lawrie

 

cc Bill.Shorten.MP@aph.gov.au Chris.Bowen.MP@aph.gov.au

 

unknown-7

Treasurer Josh Frydenberg, who could save $247 million – or continue to fund the discriminatory, harmful and wasteful National School Chaplaincy Program.

 

Update: 12 April 2019

Treasurer Frydenberg handed down the Commonwealth Budget on Tuesday 2 April 2019. Unfortunately, although perhaps not unexpectedly, the Treasurer and the Morrison Liberal-National Government have decided to continue funding for the National School Chaplaincy Program, with $61.4 million committed for each of the next four years.

However, while not unexpected, it remains a disgraceful decision, and an unjustifiable waste of $245.6 million in taxpayers money, on a scheme that is discriminatory against people who are not christian, and inherently harmful for LGBTI students in particular.

With a federal election now scheduled for Saturday 18 May 2019, it is up to the Australian public to vote out a Government that prefers to subsidise the religious indoctrination of children rather than genuinely support student welfare.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Footnotes:

[i] In the states and territories where religious belief is a protected attribute, noting that New South Wales and South Australia currently do not prohibit religious discrimination in their anti-discrimination laws.

[ii] I am not suggesting that all people currently hired as chaplains do not have appropriate student welfare qualifications, but I am saying that, by excluding a large proportion of people because of their religious beliefs (or lack thereof) the talent pool of people hired must inevitably be significantly diminished.