Commonwealth Parliament finally passed same-sex marriage legislation in December 2017, prompting some (cisgender heterosexual) politicians to claim that it was ‘mission accomplished’ in terms of LGBTI rights in Australia. They couldn’t be more wrong.
This page looks at some of the many issues of LGBTI law and policy reform that remain unfinished – lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians won’t be truly equal until these items of business are addressed. This includes, in no particular order of importance:
Unfairness in the Fair Work Act
The Fair Work Act 2009 (Cth) does not treat LGBTI people equally. It offers no protections against adverse treatment or unfair dismissal on the basis of gender identity or sexcharacteristics (intersex status). And it includes special privileges allowing religious organisations to discriminate against lesbian, gay and bisexual employees.
5 Years of the Commonwealth LGBTI Anti-Discrimination Reforms. 5 Suggestions for Reform.
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced Commonwealth LGBTI anti-discrimination protections for the first time. Five years later and some problems need to be fixed:
- Updating intersex status to ‘sex characteristics’
- Protecting LGBT students against discrimination
- Restricting religious exceptions more broadly
- Introducing protections against anti-LGBTI vilification, and
- Creating an LGBTI Commissioner within the Australian Human Rights Commission.
The process for trans and gender diverse people to access accurate identity documentation varies between the states and territories. These laws should be updated based on the following three principles:
- Access to amended identity documentation must not depend on surgery or other medical treatments
- Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
- Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.
Gay or trans conversion therapy is nothing less than psychological abuse, targeting the most vulnerable members of our community, especially children. As well as regulating the behaviour of psychologists, counsellors and other medical professionals who may be involved, the practice of ex-gay or ex-trans therapy should itself be criminalised, with additional penalties where the victims of these practices are minors.
Ending Involuntary Surgery and Medical Treatment on Intersex Children
One of the worst human rights abuses against the LGBTI community is the ongoing practice of involuntary medical interventions on children born with variations in sex characteristics. It must stop.
Achieving Genuine Marriage Equality
Despite the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, Australia does not have genuine marriage equality yet. That is because of provisions which allowed existing civil celebrants to register to discriminate against LGBTI couples, and because of the insertion of religious exceptions into the Marriage Act 1961 (Cth) itself. Both amendments need to be repealed.
Invisibility in the Curriculum
LGBTI students have the right to learn about themselves, and what they need to stay safe, in every classroom and every school. This should be guaranteed by the national Health & Physical Education curriculum, and the various state and territory Personal Development, Health and Physical Education syllabus. As this post, about the new NSW PDHPE K-10 syllabus, makes clear, this is simply not happening. LGBTI content has been excluded, and the needs of LGBTI students are being ignored. This is a failure of the duty of care which we all owe to LGBTI kids.
Abolishing the National School Chaplaincy Program
The National School Chaplaincy Program may not immediately seem like an LGBTI issue. Indeed, many of the reasons why it should be abolished are not LGBTI-specific, including that it discriminates on the basis of religious belief, is inherently contradictory (because it asks ministers of religion not to proselytise) and is not effective at supporting the welfare of all students. But it also holds particular dangers for LGBTI students, with countless examples of homophobic and transphobic behaviour by school chaplains over many year. It needs to be axed.
The National Safe Schools program was an effective, evidence-based and age appropriate initiative aimed at reducing bullying against LGBTI students. Following a vitriolic campaign against it, by the Australian Christian Lobby and The Australian newspaper, it was axed by then Prime Minister Malcolm Turnbull in 2016. Despite this, the need for this program has not diminished (and, arguably, has increased following the postal survey). It is now up to state and territory governments to save this vital program.
Increasing LGBTI Representation
While individual law and policy changes may benefit the LGBTI community, we also need structural change to ensure that the voices of LGBTI Australians are considered be decision-makers about the issues that affect us. This can be achieved by increasing LGBTI representation in Parliament, in the Executive (including via Ministers for Equality and an LGBTI Commissioner at the Australian Human Rights Commission) and through Consultation (by forming standing working groups across policy areas such as justice, education and health).
Trans Out-of-pocket Medical Costs
In addition to making it easier for trans and gender diverse people to access correct identity documentation (described above), the Commonwealth Government should also take urgent action to limit the currently extremely high costs which can accompany their transition. While some people may not wish to transition, for others it is an essential part of their journey. They should not be prohibited from accessing trans-related medical services simply because they simply cannot afford to do so, especially because of the mental health and other health benefits of living their truth.
Australia’s (Mis)Treatment of LGBTI Refugees
One of the worst human rights abuses of LGBTI people in Australia today is the ongoing mistreatment of lesbian, gay, bisexual, transgender and intersex refugees and people seeking asylum. This must be addressed in the following three ways:
- End the detention, processing and settlement of LGBTI refugees in countries that criminalise homosexuality
- Improve the assessment process for LGBTI claims for asylum
- Increase support for LGBTI refugees and people seeking asylum in Australia
I also argue that consideration should be given to whether quotas or targets should be introduced for the intake of LGBTI refugees.
Supporting International LGBTI Rights
On IDAHOBIT 2019, I wrote that the Australian Government must do better to support LGBTI rights around the world. This includes:
- Support decriminalisation as a key priority of foreign policy
- Support LGBTI rights through international human rights architecture
- Support LGBTI rights through foreign aid
- Accept LGBTI refugees and people seeking asylum
- Set a better example on LGBTI rights domestically