Tag Archives: gay Australia
Why there MUST be a Senate Inquiry into the Religious Discrimination Bill
Posted on November 1, 2021 by Alastair Lawrie
There is a *lot* of news happening at the moment. In the midst of the COVID-19 pandemic, and now during COP26 – and with it humanity's last best chance to address the existential threat of global heating – it can be difficult to keep track of other serious challenges to our human rights.
In Australia, one of those is the Morrison Liberal/National Government's proposed Religious Discrimination Bill, which they remain committed to introducing into Commonwealth Parliament before the end of 2021.
While most people outside the Government still don't know what form the final Bill will take (unlike a select few, like religious fundamentalists including the Australian Christian Lobby, with whom the Government has been negotiating – more on that later), we did learn something new last week:
Attorney-General Michaelia Cash is seeking to avoid the scrutiny of a Senate Inquiry into the Religious Discrimination Bill.
As reported in the Sydney Morning Herald last Sunday (24 October):
'Attorney-General Michaelia Cash signalled the government would ramp up pressure on Labor to not hold a Senate inquiry because the government "has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables".'
This position – Attorney-General Cash wanting to avoid the usual scrutiny of a Senate Inquiry – was then confirmed during Senate Estimates last Tuesday (26 October), via the following exchange with Greens Senator Janet Rice:
Senator Rice: … Given the far-reaching impacts of this proposed legislation, will you commit to having a full and thorough Senate inquiry into the bill once it's introduced?
Senator Cash: That's a decision for the Senate.
Senator Rice: Is the government committed and supportive?
Senator Cash: That is a decision for the Senate.
Senator Rice: It will be a decision for the Senate, but will the government be supporting having a Senate inquiry into this legislation?
Senator Cash: Again, that is a decision for the Senate.
Senator Rice: Will the government support that by helping to provide the numbers in the Senate?
Senator Cash: If the Senate determines that there should be an inquiry then there will be an inquiry.
Senator Rice: Do you think that there should be an inquiry?
Senator Rice: Do you think that there should be an inquiry given it is your legislation?
Senator Cash: The normal process would be that a bill goes to an inquiry.
Count them: that's six separate opportunities for the Attorney-General to confirm the Government would support a Senate Inquiry into the Religious Discrimination Bill. And six refusals to do so.
The closest Cash came was stating it would be a 'normal process' to hold such an inquiry, not that the Government would agree to one.
This isn't just a technical question of whether the Senate follows 'normal process' in holding an inquiry. Whether or not the Senate conducts an investigation into the Religious Discrimination Bill really matters, for two key reasons:
First, the Religious Discrimination Bill has the potential to affect the everyday lives of *all* Australians, religious and non-religious alike, including women, lesbian, gay, bisexual transgender and intersex (LGBTI) people, people with disability, divorced people and people in de facto relationships.
We know this because of the content of the first two Exposure Draft Bills, released in August and December 2019 respectively, with the most recent of those including the following features:
Allowing health practitioners, including doctors, nurses, pharmacists and psychologists, to 'conscientiously object' to providing health services – even where this has disproportionate adverse impacts on particular groups (for example, refusing to provide puberty blockers, to the detriment of trans and gender diverse young people), and
Allowing people to make offensive, humiliating, intimidating, insulting or ridiculing comments against women, LGBTI people, people with disability and even people of minority faiths, in all areas of public life, as long as those comments are motivated by religious belief.
Both the right to access health care, and the ability to go about your daily life – in workplaces, and schools and universities, and community services, and public transport, and other public spaces – without being subjected to vile comments on the basis of who you are, are at risk.
[For more detail on these and other serious problems with the Bill, see: The 'Bad Faith' Religious Discrimination Bill Must Be Blocked'.]
Legislation which carries such serious consequences deserves the highest level of scrutiny, and that must include a Senate Inquiry.
Second, the Religious Discrimination Bill has the potential to be the biggest change to Commonwealth anti-discrimination law for almost four decades.
Since the passage of the Racial Discrimination Act in 1975, and Sex Discrimination Act in 1984, the basic framework of Commonwealth anti-discrimination laws has remained relatively consistent.
This includes the general tests for what constitutes direct and indirect discrimination, and in what circumstances religious organisations are permitted to discriminate. It also includes the 'complementary' structure of Commonwealth, state and territory anti-discrimination laws, where they operate alongside each other, without seeking to override the other.
The Disability Discrimination Act 1992, Age Discrimination Act 2004, and even the addition of sexual orientation, gender identity and intersex status as protected attributes in the Sex Discrimination Act in 2013, did not fundamentally alter these arrangements.
However, the Second Exposure Draft Religious Discrimination Bill marks a radical departure from these precedents.
For example, the ability to make offensive, humiliating, intimidating, insulting or ridiculing 'statements of belief' is included in a provision (clause 42) which limits the operation of all other anti-discrimination legislation: Commonwealth (including the Fair Work Act 2009), and state and territory (singling out the Tasmanian Anti-Discrimination Act 1998 in particular).
In practice, this would be the first time the Commonwealth Government directly sought to override the anti-discrimination laws of other Australian Governments.
The 'conscientious objection' provision (in clause 8) discussed earlier also involves a significant departure from standard practice. That is because it seeks to amend how the test for indirect discrimination operates, in favour of health practitioners who wish to discriminate in the types of services they provide.
One of the Religious Discrimination Bill's other, more-infamous provisions – the so-called 'Folau clause' (also in clause 8) – is similarly-designed, altering the test for indirect discrimination to 'stack the decks' in favour of employees who make otherwise discriminatory statements outside core business hours.
Meanwhile, its proposed 'religious exceptions' (in clause 11, and scattered elsewhere throughout the Bill) dramatically re-write the existing scope of these special privileges. Not only do they apply to an expanded range of organisations, but the two different tests for whether a 'religious exception' applies are *both* far easier for organisations to use than the tests in the Sex Discrimination Act (section 37) and Age Discrimination Act (section 35).
Legislation which seeks to override state and territory anti-discrimination laws for the first time, and which significantly departs from existing practice in the test for indirect discrimination and significantly expands the scope and test for religious exceptions, deserves the highest level of scrutiny. That must include a Senate Inquiry.
What is the Government's excuse?
Attorney-General Cash did not attempt to either clarify, or justify, the Government's opposition to sending the Religious Discrimination Bill to an inquiry in her exchange with Senator Rice.
Which means we are left with her quote in the Sydney Morning Herald, namely that she does not support an inquiry: because the government "has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables".
This rationale does not withstand the application of even the slightest skerrick of scrutiny.
Yes, the Government released two Exposure Draft Bills, which were open for public submissions. And yes, both the Bills, and associated submissions, have been published (see the Attorney-General's Department website for the First Exposure Draft Bills here, and for the Second Exposure Draft Bills here.)
However, unlike a Senate Inquiry, there is little transparency about these processes:
There is no report document summarising feedback from either process
There is no public list of attendees at the roundtables mentioned by Senator Cash, and
There is no transcript of the evidence provided by these witnesses to the Government.
Also, unlike a Senate Inquiry, there was a lack of independence to these processes:
They were conducted by the Attorney-General's Department, acting on the instructions of their Minister
Attendees of the roundtables were presumably selected by, or with the close involvement of, the Attorney-General, and
There was no opportunity for Opposition, Greens and cross-bench Senators to interrogate the evidence being provided to the Government.
In short, Government-run consultation processes are no substitute for the independence and transparency of a Senate Inquiry.
But there is an even bigger problem with Attorney-General Cash's attempted justification for not supporting a Senate Inquiry into the Religious Discrimination Bill – and that is the First and Second Exposure Draft Bills were released in August and December 2019 respectively. That is more than, and just under, two full years ago.
Indeed, submissions in response to the Second Exposure Draft Bill closed in January 2020, less than a week after the first case of novel coronavirus was detected in Australia. A *lot* has changed in the intervening 21 months, including the Attorney-General (with Michaelia Cash replacing former Attorney-General Christian Porter in March 2021).
It is highly likely some aspects of the Religious Discrimination Bill will have changed in that period too – perhaps for the better, maybe for the worse.
Most members of the Australian community, and the community groups which represent them, will not be aware of those changes until the final Bill is introduced to Parliament. They deserve the opportunity to comment on the Bill's final provisions, not past versions that have potentially been superseded.
Of course, some groups *are* aware, and have been closely involved in negotiations about the Bill's contents for the past two years. This includes religious fundamentalists, such as the Australian Christian Lobby (ACL).
Indeed, the same Sydney Morning Herald article in which Cash argued against a Senate Inquiry was primarily about the ACL revealing the final Religious Discrimination Bill will include some version of the 'Folau clause'.
The article is titled 'Christian Lobby boasts religious freedom laws will include 'Folau clause', and goes on to quote ACL boss Martyn Iles:
'Mr Iles said the ACL was "very, very strongly applying pressure from a grassroots level and from our lobbying level to ensure the Folau clause remains in the bill. It was fought tooth and nail, it was really at risk for a long time there[. O]ne great win is that the final draft of the bill will contain a Folau clause. It's not perfect, but it's not bad. And it does exist within the bill."'
The Government's consultations with the ACL were not denied by Attorney-General Cash, once again at Senate Estimates:
Senator Rice: Minister, we've seen media reports – and I'm tabling the media report that I was reading last week, that the Australian Christian Lobby say that they're in the final days of negotiations with the Prime Minister's office over the bill. The ACL are claiming they are 'part of a coalition of faith leaders who jointly have been negotiating very closely with the Attorney-General, and with the Prime Minister's Office'. Is that an accurate summation of what's been happening with the negotiations on the bill?
Senator Cash: I've been negotiating far and wide in relation to the bill.
Senator Rice: Who else have you been negotiating with over the last month, for example?
Senator Cash: I've been negotiating with stakeholders across the board. I would take on notice whether or not they want their names provided, though, with all due respect to them. Some actually don't want their name provided formally.
Senator Rice: Could I take on notice a list of all the stakeholders, as far as they are willing to be named?
Senator Cash: I'm more than happy to do that, absolutely. I need to go to them to get their permission, but-
Senator Rice: Can you name some others, other than those that will be part of this coalition of faith leaders?
Senator Cash: I would prefer not to, in the event they don't want their names publicly disclosed as having discussions with me, but I'm more than happy to take it on notice for you.
Senator Rice: Have you been negotiating with any of the human rights organisations or LGBTIQ+ organisations?
Senator Cash: Yes. They're a very important stakeholder.
This exchange is deeply unsatisfactory, for a number of reasons.
The Attorney-General was unwilling to divulge the name of *any* stakeholder with whom she had been negotiating, or even consulting, over the biggest change to Commonwealth anti-discrimination law in almost four decades.
Even though Cash eventually agreed to take this question on notice (meaning she will need to respond in writing in coming months), this will unlikely be revealed until after the Bill itself has been introduced, and even then stakeholders who wish to remain secret will apparently have their names withheld from the public.
Cash's answers also do not reveal the level of engagement with each group. For example, it is possible for the Government to be 'negotiating' with religious fundamentalists about the text of the Bill, but only 'consulting' with other groups in high-level or non-specific terms.
The final answer is also worrying; Cash uses the singular form ('They're a very important stakeholder') in response to a question about negotiating with 'human rights organisations or LGBTIQ+ organisations'.
This could imply she may only be meeting with one such body, and it is unclear who that would be, especially when there is no generalist national LGBTIQ+ organisation that is accountable to the LGBTIQ+ community (LGBTIQ+ Health Australia is the closest there is although, as the name suggests, its primary focus is health).
In fact, there are a wide range of organisations that either represent particular sections of the community (like Intersex Human Rights Australia), or advocate on LGBTIQ+ issues generally (such as Just.Equal Australia and Equality Australia), as well as several state and territory membership-based LGBTIQ organisations. Senator Cash should be 'negotiating' with all of them.
All of this is to say that the broader community has almost no idea who has been meeting with Attorney-General Cash about the Religious Discrimination Bill, or how much access and influence each organisation has been able to achieve. Based on her evidence to Senate Estimates last week, it is possible we will never be permitted to know.
Which simply confirms that the *only* way there can be a truly independent, and transparent, consultation process – where the names of witnesses are published, hearings are held in public with everyone able to know who has been advocating for what, as well as an opportunity for all Parties to interrogate those views – is for there to be a Senate Inquiry.
What is Labor's position?
It remains unclear what Labor's position is on whether there should be a Senate Inquiry into the Religious Discrimination Bill.
Shadow Attorney-General Mark Dreyfus is quoted in the same Sydney Morning Herald article as Senator Cash, although he does not address this issue (to be fair, he may not have been asked about it, or he may have provided quotes on this topic that were not included).
Of more concern is the lack of public position on this by Labor in the period since then. I am not aware of any criticism from ALP MPs or Senators about Cash's push to avoid the scrutiny of a Senate Inquiry, nor did any Labor Senators on the Estimates Committee alongside Senator Janet Rice join her in challenging this position.
It is possible the Labor Opposition will push for a Senate Inquiry when the final parliamentary sitting fortnight of the year starts on Monday 22 November (which is presumably when the Government will introduce the Religious Discrimination Bill).
However, it is also possible that the ALP, under Leader Anthony Albanese, does not support referral to a Senate Inquiry. If so, their rationale for doing so would be just as weak as Attorney-General Cash's.
In the Opposition's case, they may seek to avoid any criticism they are 'holding up' so-called 'religious freedom' laws in the lead-up to the federal election, due in the first half of 2022 (even though it is the Morrison Government's own delays that have led to this timing).
But that cannot be justification for not closely scrutinising the biggest change to Commonwealth anti-discrimination laws in nearly four decades. Nor would it excuse failing to support at least an inquiry into legislation that is a serious threat to the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, even people of minority faiths.
If Labor fails to support a Senate Inquiry into the Religious Discrimination Bill in an attempt to avoid being politically 'wedged', then it seems highly likely they would subsequently also just 'wave through' the Government's legislation.
That course of events would be reminiscent of the Labor Opposition's actions under then-Leader (and now One Nation NSW Leader) Mark Latham in supporting John Howard's Bill banning same-sex marriage in 2004. A ban which took a long and painful 13 years to overturn.
If Albo does not support a Senate Inquiry into the Religious Discrimination Bill, and instead simply votes for the legislation, it would be the biggest display of Labor spinelessness on LGBTI rights since Latham revealed himself to be an invertebrate on marriage equality.
I know that, for some of you, whether or not there is a Senate Inquiry on the Religious Discrimination Bill might seem like a fairly technical discussion.
I hope I've convinced you that's not the case, and shown why holding a Senate Inquiry is essential to independently and transparently scrutinise the biggest change to Commonwealth anti-discrimination law in 37 years.
And why we need this investigation to shine a light on any proposals that undermine the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, and even people of minority faiths.
Of course, a Senate Inquiry is no guarantee this harmful legislation (if that's what it turns out to be, because most of us have yet to see the final version) is ultimately defeated, or that its worst aspects are amended or at least ameliorated. It may still end up being passed.
But it would be a terrible sign if the Government is successful in avoiding a Senate Inquiry.
Perhaps think of it like this: if the Government was proud of this Bill and its key features, if it thought it could stand up to the rigour of independent and transparent consideration by a multi-partisan Committee, then it would gladly agree to it.
That Attorney-General Cash has publicly argued against doing so, suggests the final Religious Discrimination Bill will be a fundamentally bad law.
Instead, it seems they hope to ram it through Parliament, either late this year, or early next year, while everyone is distracted by other news: COVID-19, COP26 and global heating, the impending election campaign itself, and plenty more besides.
If they are successful, then the first time some people are aware it has even happened will be when they are refused a vital health care service. At their doctor. Or by their nurse. Or pharmacist. Or psychologist.
Or when they are subjected to vile comments about who they are. In their workplace. Or at their school or university. Or at another community service. Or on public transport.
Or any other public space in which making offensive, humiliating, intimidating, insulting or ridiculing comments about other people has been permitted as long as it's motived by religious belief.
Attorney-General Michaelia Cash came empty-handed to Senate Estimates last week, unwilling to answer whether the Government supports a Senate Inquiry into the Religious Discrimination Bill, and unwilling to disclose who she has been 'negotiating' with about this legislation.
Posted in LGBTI, LGBTI anti-discrimination, Religious Exceptions, Uncategorized	/ Tagged anti-discrimination, conscientious objection, gay Australia, Janet Rice, LGBT Australia, LGBTI rights, Michaelia Cash, Religious Discrimination Bill, religious freedom, Senate Estimates, Senate Inquiry	/ Leave a comment
Scott Morrison's Broken Promise to Protect LGBT Students is Now Three Years Old
Update: 11 October 2021
Today marks three years since Scott Morrison first stated 'We do not think that children should be discriminated against', before going on to promise to amend the Sex Discrimination Act to protect LGBT students in religious schools against discrimination before the end of 2018.
Three years later, and not only has the Prime Minister failed to take any steps to implement this promise, but the prospect of the Morrison Liberal/National Government doing anything about it seems more distant than ever.
The losers from Scott Morrison's broken promise are the generation of students, going to school right now, being discriminated against right now, being harmed right now, because he said one thing to try to win the Wentworth by-election, and then did nothing afterwards – presumably because he doesn't really care about LGBT kids, and he never really did.
Original Post: 11 October 2020
Two years ago today, Prime Minister Scott Morrison promised to protect lesbian, gay, bisexual and transgender (LGBT) students in religious schools against discrimination. He stated, unequivocally: 'We do not think that children should be discriminated against.'
This promise was made following the leaking of the Ruddock Religious Freedom Review's recommendations, which sought to clarify but not repeal the existing ability of religious schools to discriminate against LGBT kids just because of who they are, and the significant public backlash it received from people who did not realise these schools already enjoyed this extraordinary special privilege under the Commonwealth Sex Discrimination Act 1984.
Morrison further committed to introducing amendments to prevent religious schools mistreating LGBT students in this way before the end of 2018, saying: 'I believe this view is shared across the Parliament and we should use the next fortnight to ensure this matter is addressed.'
Scott Morrison has reneged on his promise to protect LGBT students in religious schools against discrimination. Brazenly. Deliberately. And without any apparent consideration of the serious harms his broken promise will cause to a generation of LGBT kids.
Morrison's Government never even bothered to introduce a Bill into Parliament to attempt to implement his commitment, let alone tried to have it passed.
When the Greens, with the Discrimination Free Schools Bill 2018, and then Labor, with the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, both sought to do so themselves, the Liberal/National Government referred these Bills to Senate inquiries rather than debating them.
Even after those inquiries, which took place in late 2018 and over the summer of 2018/19 respectively, handed down their reports, the Morrison Government failed to support those proposals and still did not propose a Bill of their own. Instead, they stalled and effectively counted down the clock until the 2019 Federal election.
On the very last day before the writs were issued for that election, Attorney-General Christian Porter referred the issue of 'religious exceptions' generally to the Australian Law Reform Commission (ALRC) for a detailed, 12-month review.
After the Morrison Government was re-elected on 18 May 2019, they returned to power with even less sense of urgency to give effect to his promise from October 2018. Instead, they gave priority to preparing two Exposure Drafts of the Religious Discrimination Bill, in late 2019 and early 2020, legislation that would:
Make it easier to make comments that 'offend, humiliate, intimidate, insult or ridicule' minorities, including LGBTI people
Make it easier for health practitioners to refuse to provide services that benefit minorities, including LGBTI people
Make it easier for religious organisations to discriminate against others, and
Make it more difficult for big business to promote diversity and inclusion, including for LGBTI people.
On the other hand, they first delayed the ALRC's reporting timeline until December 2020. And then, on 2 March 2020, the Attorney-General amended the ALRC's reporting deadline to be '12 months from the date the Religious Discrimination Bill is passed by Parliament.'
That change alone is enough to guarantee Morrison's promise – which, let's remember, was to protect LGBT students before the end of 2018 – will not happen this term.
First, the Religious Discrimination Bill may not pass (and, in its current form, it most definitely should not). Second, even if it passes, it will not happen until the first half of 2021 at the earliest. At a minimum, that makes the ALRC's new reporting deadline the first half of 2022, which is when the next federal election is due (by May 2022, although there is increasing speculation it will instead be held in late 2021).
Even after the ALRC ultimately delivers its report, it usually takes a Government at least six months to prepare a formal response, and six months again to introduce legislation based on its response.
Which means, even if the Government still feels bound by Morrison's original promise from October 2018, even if the Liberal/National Government is re-elected, even if Morrison remains Prime Minister, even if the ALRC recommends how to implement his commitment, even if the Government accepts the ALRC recommendation, even if the Government prepares and introduces legislation to make this change and even if Parliament passes it, that legislation will not happen until 2023, and will likely not take effect until 2024.
A student in Year 7 when Scott Morrison first promised to urgently protect LGBT kids in religious schools against discrimination will finish Year 12 before his Government gives effect to it – if they ever do.
This isn't just any ordinary broken promise either. In raising hopes that some of the most vulnerable members of our community might finally be legally protected, and then comprehensively dashing them, Morrison has broken hearts, while leaving a trail of broken lives in his wake.
That's because anti-discrimination exceptions allowing religious schools to mistreat LGBT students just because of who they are inflict serious, real-life harm on those kids.
Religious schools can harm LGBT kids through the hateful things they say to them. And they can harm LGBT kids by not saying anything positive at all, leaving children who are struggling to figure out who they are to suffer, alone, in the all-enveloping silence of the closet.
Religious schools can harm LGBT kids by expelling them because of their sexual orientation or gender identity. But, generally, they don't need to – the threat alone is enough. Where a student does bravely decide to come out despite that school's prejudiced views, the school can 'encourage parents to find a more suitable environment for their child' (and what parent would force a school to expel their child in such circumstances?).
Religious schools can harm LGBT kids in myriad ways that fall short of expulsion too, from special rules targeting same-sex attraction, and erasing gender diversity.
Above all, religious schools can harm LGBT kids by creating a toxic environment, where those students know they will not receive safety and protection if they need it – something other kids figure out all too quickly, and take advantage of with impunity.
I know the above from bitter personal experience – barely surviving five years at a religious boarding school in Brisbane in the early 1990s.
When they weren't saying hateful things about my sexual orientation (like the pastor who suggested that, for kids struggling with 'confusion', killing themselves was not the worst possible outcome), they said nothing at all, leaving a dangerous void in which homophobia can, and did, flourish.
Their explicit rules against same-sex attraction didn't need to be enforced either – all students knew being 'out and proud' simply wasn't an option. Worst of all, the school's anti-LGBT stance meant other boarders were free to 'police' any students who displayed even the subtlest signs of difference: I was subjected to both verbal, and at times physical, abuse.
The most depressing part of all is the realisation that, in many parts of Australia, little has changed in the past 25 years. While, thankfully, Queensland, Tasmania, the ACT and Northern Territory have all legislated to remove the special privileges allowing religious schools to discriminate against LGBT kids, other jurisdictions have not.
In 2020, it is appalling and infuriating that religious schools in NSW, Victoria, Western Australia and South Australia can still legally mistreat LGBT students simply because of who they are.
And they still do, too. As Oliver Griffith wrote, in 2018, about his own, more-recent experiences at a religious school (in an article called 'Growing up gay in a Christian school had lasting effects on my life'):
'Growing up gay in an environment like this is a challenge because you are faced with your realisation of your own identity and at the same time are taught by people you trust that you are a deviant, a danger to society, and otherwise should be shunned from the community… the open criticism of homosexuality meant that I was always aware that revealing who I was to the people around me could result in being ostracised from my friends and the teachers I had learnt to respect. Despite becoming aware of my sexuality at the age of 14, I never revealed this publicly until I was in my 20s.'
My, and Oliver's, stories of survival are by no means unique. And, of course, there are the countless stories we will never get to hear, because those students took their own lives as a direct consequence of the homophobia, biphobia and transphobia of religious schools, all legally supported by our Commonwealth Government.
The serious harms caused by the special exceptions provided to religious schools is backed up by the evidence. As expert in this area, Dr Tiffany Jones, wrote in the conclusion of their submission to the 2018 Senate inquiry titled 'The Wrong of 'Discrimination Rights'':
The data outlined in this submission adds to the author's past submissions on [Sex Discrimination Act] Drafts citing evidence showing that the majority of LGBT students who attended religious schools rated them as homophobic spaces and that many LGBT students in religious schools suffered attempts to be 'converted to heterosexuality' or were forced out of their schools (eg in 2012). This submission shows new evidence that this trend continues in Australian religious schools, especially for people on the trans-spectrum. This is despite the fact that conversion attempts are widely and strongly denounced by peak psychology bodies.
Past submissions from the author showed there are significantly fewer policy-based protections for LGBT students in religious schools, which is highly problematic as policy protections are associated with decreased risks of experiencing homophobic and transphobic violence and decreased risks of self-harm and suicide rates for the group. However, the 2018 data shows that anti-LGBT conversion approaches contribute to harm the wellbeing of not only LGBT students, but most people attending those schools – who are significantly more likely to consider self-harm and suicide, and attempt self-harm and suicide.
The 2018 data show 'gay' is still the top insult in Australian schools. Trans-spectrum people suffer from more staff targeting just attending school as legally enforced. If our nation requires youth to attend school, and insists on funding religious schools, then those schools must be safe. The small portion of extremist conservative religious schools of Australia (not all religious schools, but those taking advantage of the SDA's exemptions which effectively endorse anti-LGBT approaches) provide an educational environment lacking in basic social competencies for entering a modern diverse Australia and following its laws outside of the unrealistic 'bubble' of these schools. We need to ensure safety and better citizenship education at these schools. Not only for LGBTs, but for all students experiencing the wellbeing and educational deficits of discrimination on gender identity, gender expression and sexual orientation. [emphasis in original]
Dr Jones is correct – if we compel students to attend school, then we must ensure that all school environments are safe for all students, including lesbian, gay, bisexual and transgender kids.
Currently, they are not. Religious schools are legally allowed to harm LGBT students, by what they say, and what they don't say. By what they do (in enforcing anti-LGBT policies and rules), and what they don't need to (because of the threat hanging over the heads of LGBT kids). And most of all, religious schools are legally permitted to harm LGBT students by creating toxic cultures in which homophobic, biphobic and transphobic bullying and violence can thrive.
Two years ago today, Prime Minister Scott Morrison promised to protect LGBT students in religious schools against discrimination. He has done nothing in the two years since to give effect to this commitment.
While Scott Morrison might be able to walk away from his words, he cannot walk away from his responsibility for the serious harm being inflicted, needlessly, on another generation of LGBT kids because of his inaction. Harm that will still be felt by too many long after his time as Prime Minister comes to an end.
It is clear from the history of this issue that the PM is not going to take action just because it is the right thing to do. He will only make this change if we put enough pressure on him. On that basis, it's up to all of us to tell Morrison that:
Most importantly, don't forget to add a personal explanation of why this issue is important to you. Thanks!
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.
Scott Morrison's broken promise to protect LGBT students in religious schools against discrimination turns two years old today (11 October 2021).
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Posted in LGBTI anti-discrimination, LGBTI education, Religious Exceptions, Uncategorized	/ Tagged Australian Law Reform Commission, education Australia, gay Australia, homophobia, LGBT Australia, LGBT students, Religious Discrimination Bill, Religious Freedom Review, religious schools, Scott Morrison, Sex Discrimination Act 1984	/ 1 Comment
She who should not be named (on a tennis stadium)
Posted on January 19, 2020 by Alastair Lawrie
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.
2020 should be the last year Margaret Court's name appears above the third court at Melbourne Park.
Posted in LGBT sport, LGBTI, Uncategorized	/ Tagged Australian Open, Casey Dellacqua, Evonne Goolagong Cawley, gay, gay Australia, homophobia, homophobia in sport, LGBT Australia, Margaret Court, Margaret Court Arena, tennis, transphobia	/ 5 Comments
Census 2021 – Count Us In
Posted on January 3, 2020 by Alastair Lawrie
On Monday 11 February 2020, the Guardian Australia reported that the 2021 Census Regulations had been lodged by the Assistant Treasurer, Michael Sukkar – without any new questions on sexual orientation, gender identity and sex characteristics.
In case it wasn't clear before this, it is now undeniable that, as far as the Morrison Liberal-National Government is concerned, LGBTI Australians don't count, and we therefore shouldn't be counted.
The ramifications of this exclusion will last for most of the 2020s. The next opportunity to include sexual orientation, gender identity and sex characteristics will be the 2026 Census. Data from that Census will be progressively published from 2027 onwards, meaning service-delivery based on that data, in health, education and other community services, is unlikely before 2028.
The decision to effectively erase LGBTI Australians from the Census will be felt for most of the next decade (at least). Shame on the Minister, and Government, who would prefer us to be invisible.
It may not seem all that important right now, with everything else going on, but whether lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are included in the 2021 Census will have a long-term impact on the health of our communities.
The Commonwealth Treasury Department is currently conducting a public consultation on Exposure Draft Census and Statistics Amendment (Statistical Information) Regulations 2019.
Submissions close next Friday, 10 January 2020. If you have the time, please consider making a short submission, asking them to #CountUsIn. More information about how to make your voice heard, from the National LGBTI Health Alliance, is provided below.
Here's my letter:
Division Head
Macroeconomic Modelling and Policy Division
Langton Cres
Parkes ACT 2600
Submitted via: 2021CensusRegulations@treasury.gov.au
Friday 3 January 2020
Re: Census of Population and Housing
I am writing to you as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, to bring to your attention my personal view about the importance of including questions on sexual orientation, gender identity and intersex status in the 2021 Census.
For me, a census that captures sexual orientation, gender identity and intersex data will enable us all to better manage our health. It is important for governments at Commonwealth and state and territory level, and service providers, to have access to this data, so that I and my family and friends have the same access to targeted health services as all other Australians.
I am aware that the ABS itself asked the Commonwealth Government to consider sexual orientation, gender identity and intersex status questions to be included in the census based on an overwhelming need for this data to be collected.
I also note that in 2017 the Commonwealth Government spent $80.5 million in engaging the ABS to conduct the same-sex marriage law postal survey.
Apparently, asking all Australians to express their opinion about the relationships, and lives, of LGBTI people and their families was acceptable then.
It would be an incredible, and unjustifiable, double-standard to decide that asking people about their sexual orientation, gender identity and intersex status is unacceptable now.
LGBTI people are part of every Australian community, and everyone deserves to be counted.
We count. Our lives count. Our health counts. Our futures count. It's time to count us in.
I respectfully ask that you reconsider the inclusion of these questions in the 2021 Census.
One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take.
In this case, I strongly encourage you to visit the National LGBTI Health Alliance website, where they have provided a draft template letter on which the one above is based.
Please download it, add your own personal message and lodge it by Friday 10 January 2020. As requested by the Alliance, if you are emailing it, please also copy info@lgbtihealth.org.au and ask for your submission to be made public on the Treasury website.
Make your voice heard. Make sure our community is counted. #CountUsIn2021
Posted in LGBTI, LGBTI health, Uncategorized	/ Tagged #CountUsIn, #CountUsIn2021, Australian Bureau of Statistics, Australian Census, Census 2021, Census of Population and Housing, gay Australia, gender identity, intersex, LGBT, National LGBTI Health Alliance, sexual orientation	/ Leave a comment
The Religious Discrimination Debate is a Test for the States and Territories
Posted on September 18, 2019 by Alastair Lawrie
The Religious Discrimination Bill, released in late August by Attorney-General Christian Porter, would be the biggest reform to anti-discrimination law in Australia in at least 15 years, since the passage of the Age Discrimination Act 2004.
In fact, it is potentially the most radical change to our federal anti-discrimination system since, well, the beginnings of anti-discrimination law in this country.
That's because it fundamentally undermines one of the key concepts of this framework: concurrent Commonwealth, and State/Territory, jurisdictions.
Since the passage of the Commonwealth Racial Discrimination Act 1975, NSW Anti-Discrimination Act 1977, and similar laws elsewhere, these laws have operated effectively alongside each other, without directly interfering with each other.
Where conduct was prohibited under laws at both levels, the victims of such discrimination were able to choose where to lodge their complaint. Successive Commonwealth Governments haven't sought to cover the field, or explicitly override the provisions of State and Territory anti-discrimination laws.
But this is no longer the case. The Religious Discrimination Bill dramatically, and unprecedentedly, upsets Australia's anti-discrimination applecart.
Section 41 provides that 'statements of belief' do not constitute discrimination for the purposes of any anti-discrimination law – including each of the Racial, Sex, Disability and Age Discrimination Acts at Commonwealth level, and all equivalent state and territory laws.
The Apple Isle has even more to lose than the others – with section 17(1) of their Anti-Discrimination Act 1998 singled out by name as being specifically overruled.
This is undoubtedly because it offers the most effective form of protection against conduct that 'offends, humiliates, intimidates, insults or ridicules' a wide range of groups, including LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability, among others.
But all State and Territory Governments should be alert and alarmed at this unwanted and unwarranted intrusion, not least because of the proposal that the Commonwealth Attorney-General be allowed to override even more laws by future regulation, without needing the approval of federal Parliament (and with Senate numbers making it extremely difficult for these regulations to be disallowed).
It is not just the principle of federalism that is offended by this hostile takeover. It is the fact the Religious Discrimination Bill makes it easier to offend the rights of vulnerable groups in each and every Australian jurisdiction that makes its contents so disturbing.
This makes the current religious discrimination debate a major test for State and Territory Governments around the country. Will they stand up to the Commonwealth Government's decision to undermine their anti-discrimination laws?
More importantly, will they stand up for the communities in their respective states and territories – LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability – who stand to lose the most as a consequence of the Religious Discrimination Bill?
There is another, related challenge for State and Territory Governments from these developments. At the same time as the Attorney-General was releasing his exposure draft Bill, the reporting date for the Australian Law Reform Commission's review of 'religious exceptions' was pushed back to December 2020.
This is the inquiry that was established earlier this year to examine whether provisions which allow religious schools to discriminate against LGBT students, and teachers, should be amended, or repealed entirely.
The delay means any legislation arising from this inquiry will likely not be passed until the second half of 2021 – and therefore won't be in place until the 2022 school year at the earliest.
This is incredibly disappointing given Prime Minister Scott Morrison's broken promise, in October 2018, that he would ensure LGBT students were protected before the end of last year. Effectively, this will now be delayed by more than three years.
The contrast with the Religious Discrimination Bill is also revealing. On one hand, the Morrison Government wants to pass a stand-alone Religious Discrimination Bill before the end of this year – a substantial, and radical, change to our federal anti-discrimination regime, with just one month of public consultation.
On the other, it refuses to make what are modest, straight-forward changes to protect LGBT students and teachers in religious schools for several years. It has decided to vacate that field, and consequently to vacate their responsibilities to vulnerable kids.
In the meantime, LGBT students and teachers will continue to be subject to abuse and mistreatment, simply on the basis of who they are, in schoolyards, classrooms and staff-rooms around the country.
And so it is now up to State and Territory Governments to show the leadership that the Commonwealth Government won't. For NSW, Victoria, South Australia and Western Australia to pass urgent changes to protect LGBT students. And for all jurisdictions other than Tasmania and the ACT to cover LGBT teachers.
Because all kids deserve to grow and learn in a safe environment. And they don't deserve to wait until 2022 to know what that feels like.
NSW Premier Gladys Berejiklian at Sydney Gay & Lesbian Mardi Gras, and Victorian Premier Daniel Andrews at Midsumma. Will they stand up against the Religious Discrimination Bill which will make it easier to discriminate against LGBTI people in their respective states?
Posted in LGBTI anti-discrimination, LGBTI education, Religious Exceptions	/ Tagged Anti-Discrimination Act 1998, Australian Law Reform Commission, gay Australia, homophobia, LGBT, LGBT students, LGBT teachers, Religious Discrimination Bill, religious freedom, religious schools, Scott Morrison, Tasmania	/ Leave a comment
The Growing List of Problems with the Religious Discrimination Bill(s)
The Religious Discrimination Bill(s), released by Attorney-General Christian Porter in late August, remind me a lot of the ongoing Sydney apartment crisis.
They are the inevitable consequence of a system that has been designed to serve the interests of one group over and above everyone else. Except instead of property developers, these new laws would benefit religious fundamentalists. While those left picking up the tab are women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities, and plenty of others.
And, just like a recently-built Sydney apartment, what might seem shiny and new on first inspection reveals a growing list of defects the closer one looks.
Here then is a look at the serious problems with the Religious Discrimination Bill(s) that we are already aware of (a list I'm sure will grow if we ever have the misfortune of 'living' under these shoddily-constructed laws):
The Religious Discrimination Bill will make it easier to make comments that 'offend, humiliate, intimidate, insult or ridicule' minorities
The worst provision of the Exposure Draft Religious Discrimination Bill is proposed section 41. This provides that 'statements of belief' are basically exempt from discrimination complaints under all Commonwealth, State and Territory anti-discrimination laws (including the Fair Work Act 2009).
As long as the person making such comments does so on the basis of their religion and they are made 'in good faith', they will be lawful unless the person on the receiving end can show they are malicious, or likely to harass, vilify, incite hatred or violence. In practice, that would be extremely difficult to prove.
This section is a radical departure from our current anti-discrimination framework, under which Commonwealth laws like the Sex Discrimination Act 1984, and State and Territory laws like the NSW Anti-Discrimination Act 1977, operate alongside each other, allowing victims to decide where to complain.
The provision also specifically overrides section 17(1) of Tasmania's Anti-Discrimination Act 1998, which prohibits conduct that 'offends, humiliates, intimidates, insults or ridicules' people on the basis of a wide range of protected attributes, including:
Lawful sexual activity
Intersex variations of sex characteristics
Parental status, [and]
Family responsibilities.
That's a long list of groups who will find themselves the targets of derogatory comments having lost one of the few effective shields against them.
But that's exactly what section 41 seems intended to achieve: to make it easier for religious fundamentalists to speak evil, and write evil, comments about different groups. With the obvious consequence that women, LGBTI people and others will be forced to see evil and hear evil comments about themselves.
This provision would build a fundamental imbalance into our existing anti-discrimination system, privileging the rights of one group within society at the expense of everyone else. It must not be allowed to pass.
The Religious Discrimination Bill will make it more difficult for big business to promote diversity and inclusion
Another serious problem of the Exposure Draft Religious Discrimination Bill are provisions which are based on the circumstances of a certain (ex-)footballer.
Proposed sub-sections 8(3) and 8(4) would make it much more difficult for major employers (organisations with revenue of at least $50 million per year) to introduce codes of conduct that prevent employees from making derogatory comments about minorities outside ordinary working hours where those comments are 'statements of belief'.
The only way an employer will be able to enforce such restrictions is if they are able to demonstrate failure to do so would inflict 'unjustifiable financial hardship' on them. On a practical level, it will be extremely difficult to prove hypothetical yet significant future harm in order to justify imposing these rules in the here and now. Many big businesses will (quite understandably) simply avoid doing so.
It should also be noted that 'unjustifiable financial hardship' is the only criteria to permit these codes of conduct. They cannot be implemented on the basis of wanting to promote diversity and inclusion within the workplace (including to make other employees feel welcome), or to associate their 'brand' with values of diversity and inclusion more broadly – unless they can attach a sufficiently-large dollar value to it.
Once again the likely consequence of these provisions is to make it easier for religious fundamentalists to make offensive comments about women, LGBTI people, single parents, people in de facto relationships, divorced people and people with disabilities, among others. That seems to be the opposite outcome to what a well-constructed anti-discrimination law should achieve.
The Religious Discrimination Bill will make it easier for health practitioners to refuse to serve minorities
The next major defect of the Exposure Draft Religious Discrimination Bill is also found in proposed section 8 – this time sub-sections 8(5) and 8(6). These provisions make it easier for health practitioners to conscientiously object to providing health services.
If, upon reading this, you think these provisions must be referring to 'controversial' medical procedures such as abortion and euthanasia, you should be aware they actually cover a much, much wider range of health services.
This includes assisted reproductive technology, where health practitioners would presumably be empowered to 'conscientiously object' to providing access to single women, unmarried couples and LGBTI people.
But even that is just the tip of the iceberg in terms of services where it will be more difficult to impose 'health practitioner conduct rules' to treat all patients with dignity and respect. Indeed, the definition of 'health service' in section 5 'means a service provided in the practice of any of the following health professions:
Aboriginal and Torres Strait Islander health practice
Dental …
Medical radiation practice
Podiatry, [and]
Psychology.'
This full list makes it abundantly clear these provisions are not restricted to permitting health practitioners to refuse to perform certain acts, but instead will encourage them to refuse to serve certain classes of people (unless someone can explain what 'controversial' procedures are involved in dentistry, medical radiation practice, or optometry).
For example, it could allow a pharmacist to refuse to dispense hormone treatments to trans customers, while providing them to cisgender women. Indeed, this is something that the Human Rights Law Alliance (which is aligned to the Australian Christian Lobby) has been publicly advocating.
If you are now thinking that these provisions have the potential to substantively undermine Australia's health care system, and in particular the right of all people to access essential health services without fear of discrimination on the basis of who they are, you would be right.
Both of these sets of unusual amendments to the ordinary 'reasonableness' test for indirect discrimination (sub-sections 8(3) and (4) re big business, and sub-sections 8(5) and (6) re health practitioners) must be rejected.
The Religious Discrimination Bill will make it easier for religious bodies to discriminate against others
The fourth and final serious problem in the Exposure Draft Religious Discrimination Bill is the broad 'exception' in proposed section 10 that would allow religious bodies, including religious schools and registered charities, to discriminate against others on the basis of religious belief, or lack of belief.
Given this provision effectively allows discrimination between religions, it would be tempting for women's organisations, and groups representing LGBTI Australians, to give it less attention than those outlined above. But it would be ill-advised to ignore its potentially far-reaching consequences.
For example, the test to allow discrimination: 'conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion', will be much easier to satisfy than the existing criteria in section 37 of the Sex Discrimination Act 1984: 'an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion' [emphasis added].
If the test in section 10 of the Religious Discrimination Bill becomes law, it would set a negative precedent, with some in the Government then pushing for the same, lower standard to be included in the Sex Discrimination Act (potentially through the current Australian Law Reform Commission inquiry into religious exceptions).
The exception in section 10 also applies to an incredibly wide range of circumstances. For example, it would allow a religious school to expel a student in year 12 for expressing doubts about the school's religion (something that is specifically excluded under equivalent laws in Queensland, Tasmania, the ACT and Northern Territory, which allow discrimination on the basis of religious belief at admission, but not once enrolled).
Finally, if section 10 becomes law it could set up a potential 'time-bomb' for future anti-discrimination reform. If and when we finally achieve repeal of the religious exceptions in the Sex Discrimination Act, this provision could allow religious schools to expel LGBT students who refuse to repent for their sexual orientation or gender identity (where the school attempts to claim they are not discriminating because they are LGBT, but instead on the basis of their religious beliefs about being LGBT).
For all of these reasons, proposed section 10 must be substantially narrowed in order to avoid creating a structural flaw not just in the Religious Discrimination Bill itself, but across anti-discrimination legislation more generally.
These four sets of provisions are dangerous, unprecedented, unwanted and unwarranted additions to Australia's anti-discrimination regime (so much so they might be described as the four horsemen of our 'religious freedom' apocalypse).
They will disturb any sense of balance or proportion in our laws, by making it clear the right of religious fundamentalists to discriminate against others is more important than the rights of women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live their lives free from discrimination.
The Religious Discrimination Bill will ensure that religious belief is privileged in several key ways, in an almost unlimited range of everyday situations.
But they are not the only threats in the draft laws released by the Attorney-General a fortnight ago.
You may have noticed in this article's title, and introduction, references to Religious Discrimination Bill(s). That's because, along with the Exposure Draft Religious Discrimination Bill itself, Mr Porter also released the Religious Discrimination (Consequential Amendments) Bill 2019, and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.
While these two Bills have received far less attention than the Religious Discrimination Bill, they too contain provisions that could undermine the human rights of other Australians, including:
The Religious Discrimination (Consequential Amendments) Bill creates the unnecessary position of Religious Freedom Commissioner
The Government's own Religious Freedom Review (aka the 'Ruddock Review') found it was not necessary to create the position of Religious Discrimination Commissioner within the Australian Human Rights Commission.
Despite this, the Consequential Amendments Bill would do exactly that. Further, it frames this position as a Religious Freedom Commissioner, in contrast to the Age, Disability, Race and Sex Commissioners who are all explicitly appointed as 'Discrimination' Commissioners.
Finally, adding insult to injury, the Government would be appointing a Religious Freedom Commissioner when LGBTI Australians still do not have our own Commissioner, more than six years since the introduction of protections on the basis of sexual orientation, gender identity and intersex status.
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily amends the objects clauses of anti-discrimination laws
This Bill would introduce the following words into the objects clauses of all other Commonwealth anti-discrimination laws:
'In giving effect to the objects of this Act, regard is to be had to the indivisibility and universality of human rights, and the principle that every person is free and equal in dignity and rights.'
Which sounds innocuous enough, except that in the explanatory notes for the Bill the only other human right that is specifically mentioned by name is 'the right to freedom of religion.'
These explanatory notes can and will be used by the judiciary in determining how these amended objects clauses affect the interpretation of the Racial, Sex, Disability and Age Discrimination Acts, potentially giving more weight to so-called religious freedom (at a time when we need to be reducing religious exceptionalism, not exacerbating it).
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily 'protects' charities advocating discriminatory marriage
This Bill would also amend the Charities Act 2013 (Cth) to ensure that charities that advocate for only cisgender heterosexual marriage are not de-registered. Specifically, it would include the following in section 11:
'To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.'
Except, when the Marriage Act 1961 (Cth) was amended in 2017, the Charities and Not-for-profits Commission advised Parliament such an amendment was not needed. And, in the two years since then, there is exactly zero evidence of any charity being adversely affected.
Nor is there any justification for singling out this one discriminatory and exclusionary belief for special protection in our charities regulation.
The Human Rights Legislation Amendment (Freedom of Religion) Bill inserts more discriminatory religious exceptions into the Marriage Act
Speaking of the Marriage Act, this Bill would also insert even more religious exceptions into that law. Specifically, new section 47C would explicitly allow religious educational institutions to discriminate in the provision of facilities, goods and services for the purposes of the solemnisation of marriage.
This would permit schools to discriminate against LGBTI couples, divorced people re-marrying and people who had previously cohabitated – even where these facilities, goods and services are provided publicly on a commercial or for-profit basis.
As I have written previously, the amendments that were included in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 already mean we do not currently enjoy genuine marriage equality in this country. We should be aiming to remove those religious exceptions, not entrench them.
I wrote at the beginning of this post that the Religious Discrimination Bill(s) share several similarities with the ongoing Sydney apartment crisis.
But there is also one key difference – while these plans have been drafted, they have not yet been 'built'. Which means there is still time to avert this new crisis, for the Morrison Government, and Parliament more generally, to amend the Religious Discrimination Bill and its two accompanying laws, and thereby avoid their adverse impact on large numbers of everyday Australians.
However, if the Government and Parliament fail to listen and take action, and instead pass these Bills unamended, they will be condemning women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live under the legislative equivalent of Opal Tower, or Mascot Towers.
We will always be fearful of the next crack to emerge: of the next time we are discriminated against simply because of who we are, entirely lawfully, because of somebody else's religious beliefs. We will never get to feel at home.
The Religious Discrimination Bill(s) are the legislative equivalent of Opal Tower – but there's still time to avert a new crisis, if the Government and Parliament are willing to listen.
To find out more about everyday situations in which religious beliefs will be privileged, check out this twitter thread. And if you've 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.
Posted in LGBTI anti-discrimination, LGBTI anti-vilification, Religious Exceptions	/ Tagged Anti-Discrimination Act 1998, Christian Porter, conscientious objection, gay, gay Australia, homophobia, LGBT, Marriage Act 1961, Religious Discrimination Bill, religious freedom, Religious Freedom Commissioner, Sex Discrimination Act 1984	/ 12 Comments
Stonewall 50: Bouquets & Bricks
Posted on June 28, 2019 by Alastair Lawrie
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.
Posted in Uncategorized	/ Tagged gay, gay Australia, HIV/AIDS, homophobia, LGBT, LGBT history, LGBT rights, LGBTI rights, pride, Stonewall, Stonewall 50, Stonewall Riots, Sydney Gay Mardi Gras, transphobia, World Pride	/ 3 Comments
The Right to Learn
The right to education is one of the most fundamental of all human rights.
This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual's life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.
The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?
I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).
I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)
Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.
This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.
That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:
The Commonwealth Sex Discrimination Act 1984
The NSW Anti-Discrimination Act 1977 (which in fact allows all private schools and colleges to discriminate on the basis of homosexuality, and transgender, even where the school is not religious)
The Victorian Equal Opportunity Act 2010
The Western Australian Equality Opportunity Act 1984, and
The South Australian Equal Opportunity Act 1984 (although for South Australia the legal situation is not entirely certain).
On the other hand, LGBT students are legally protected against discrimination at religious schools in Queensland, Tasmania, the ACT and the Northern Territory [for a complete summary of the situation nationally see: Back to School, Back to Discrimination for LGBT Students and Teachers].
However, we should not allow this conversation to be dominated by dry legal analysis, when it is the discrimination these laws permit that we should highlight.
For example, these were just some of the responses to my 2017 survey looking at The State of Homophobia, Biphobia and Transphobia in Australia:
"I was given detention and threatened with suspension for revealing I was attracted to girls at a Christian high school. I was forced to endure hands-on prayer to rid me of the homosexual demons."
"I was at a Christian private school in north Sydney, we had lessons in religion that focused on why being gay is wrong and how you can change."
"My friend goes to a Catholic school and is bisexual. Her music teacher gives her shit about being bisexual and says that she is sinning and she will be going to hell."
I also know from bitter personal experience just how toxic these environments can be, having (barely) survived five years at a religious boarding school in Queensland in the early 1990s.
As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.
The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.
Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.
Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.
Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.
Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.
Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.
Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.
Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.
These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.
It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.
That includes Prime Minister Scott Morrison's broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.
Instead, we now have an Australian Law Reform Commission inquiry into religious exceptions that won't report until April 2020, and a re-elected Liberal-National Government that likely won't do anything until the second half of next year (at the earliest).
This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.
We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.
Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.
Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn't the case in Australia. It's something we must change for the sake of LGBT students now, and for the generations yet to come.
All students have an equal right to education, including LGBT students.
Posted in LGBTI, LGBTI anti-discrimination, LGBTI education, Religious Exceptions	/ Tagged Anti-Discrimination Act 1977, Equal Opportunity Act 1984, Equal Opportunity Act 2010, gay Australia, homophobia, LGBT, LGBT students, religious schools, right to education, Scott Morrison, Sex Discrimination Act 1984	/ 4 Comments
What Happens Now for LGBTI Rights?
Posted on June 2, 2019 by Alastair Lawrie
It is two weeks on from the Federal election, in which the Liberal-National Coalition was surprisingly (some might say shockingly) re-elected. It was a disappointing result from an LGBTI rights perspective, given Labor had adopted the most progressive major-party platform on LGBTI issues in history.
The Morrison Government's position on a range of topics that affect our community is a lot less clear. Now that the dust has settled after the May 18 poll, what does the future hold for LGBTI rights in Australia?
The most immediate issue that confronts the lesbian, gay, bisexual, transgender and intersex community is the potential threat of a Religious Discrimination Bill.
I write 'potential' because it remains unclear exactly what type of legislation the Government is proposing to implement its commitment arising from the Ruddock Religious Freedom Review.
On one hand, it could be a Religious Anti-Discrimination Bill, which would add religious belief, including lack of belief, as a protected attribute to Commonwealth anti-discrimination law. This would be welcome, given religious minorities in particular should be protected against discrimination simply because of who they are (something LGBTI Australians have much empathy for).
Indeed, that is what was promised by Attorney-General Christian Porter, in his joint press conference with Prime Minister Morrison in December 2018, when they announced the Government's response to the Ruddock Review:
"The architecture for discrimination legislation is well-known, it's not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don't think that that would be a very contentious bill, necessarily, it follows a very standard architecture. But what the Ruddock Report said, is that there is a need for such a bill.
"I would put it to you all this way. In Australia at the moment, if you're invited to a function at Parliament and at entry to the room of that function, you were denied entry because of the fact that you had a disability or because of your race, or because of your age, or because of your sex, that would be unlawful. But if you were turned away because of your religion, that would not be unlawful in Australia. So this, if you like, is the fifth and final pillar of an overarching architecture that prevents discrimination for Australians, directed to Australians, based on attributes which should never be the basis for discrimination."
On the other hand, the Government could instead introduce a Religion Pro-Discrimination Bill, which further entrenches the special privileges of religious organisations to discriminate against others, including (but not limited to – see below) LGBTI Australians.
This discriminatory type of legislation was this week publicly-supported by Government MPs Barnaby Joyce and Concetta Fierravanti-Wells ('Folau's Law: Coalition MPs push for bolder action in a 'new dawn' for religious freedom, Sydney Morning Herald, 29 May 2019). It is also being advocated for by religious fundamentalist groups like the Australian Christian Lobby, while backed by a campaign from The Australian newspaper.
A Religious Pro-Discrimination Bill would present the greatest threat to LGBTI rights in Australia since criminalisation. It is entirely natural for us to feel threatened by this possible development. Indeed, the Government has created the vacuum allowing this fear to arise, given it would not reveal the contents of its proposal before the election (despite Porter saying in December 2018 that: "the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it").
Therefore, while it was encouraging that Porter pushed back on the calls from his colleagues (Attorney-General Christian Porter pushes back on 'Folau's law' idea, Sydney Morning Herald, 30 May 2019), we must prepare for either possibility, a Religious Anti-Discrimination Bill or a Religious Pro-Discrimination Bill.
And we must do so as a matter of urgency, with Porter indicating that he wants to introduce the legislation – whichever it is – when Parliament resumes in July.
While it is almost certain the Morrison Government will proceed with a Religious Discrimination Bill (of some kind) in the near-term, the future for LGBT students in religious schools is far less clear.
Despite the Prime Minister himself promising to protect LGBT students against discrimination before the end of 2018, he obviously failed to do so. Instead, the day before the election was called, Attorney-General Porter referred the issue of religious exceptions to the Australian Law Reform Commission for review.
At this stage, "[t]he ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019." The final report is due by 10 April 2020 (for more details, see the ALRC website).
The LGBTI community must be heavily involved in this process, to ensure that our interests are appropriately considered at every step. This includes advocating for the full removal of the ability of religious schools to discriminate against LGBT students under the Sex Discrimination Act 1984 (Cth), rather than allowing such discrimination to continue just under a different name. And we must engage politically (see below) to pressure the Government to finally fulfil its commitment to protect LGBT kids.
Unfortunately, the election result makes the removal of similar discrimination against LGBT teachers that much more difficult (although not impossible). Ditto for abolishing the exceptions that allow religious organisations to lawfully discriminate against LGBT Australians in employment generally, and in the provision of services.
But that doesn't mean we give up. It just means we fight harder. Because LGBTI Australians will not truly be equal until we have the right to learn, the freedom to earn and the ability to access services without fear of discrimination on the basis of our sexual orientation, gender identity or sex characteristics.
As after any election, the personnel in Federal parliament have changed (even if perhaps not as much as many LGBTI Australians would have liked). This means we must adapt the targets of our advocacy regarding the above two issues.
In addition to lobbying (where possible) Prime Minister Morrison and Attorney-General Porter, we should also focus on the growing 'rainbow' group within the Liberal Party, with lesbian Angie Bell elected to represent Moncrieff in the House of Representatives, joining Trent Zimmerman, Trevor Evans, Tim Wilson and Senator Dean Smith, plus long-term LGBTI ally Warren Entsch.
The likely composition of the new Senate also means that returning Tasmanian Senator Jacqui Lambie now wields significant power, together with the two Centre Alliance Senators from South Australia, Rex Patrick and Stirling Griff. It is not an exaggeration to say that these three Senators will hold our collective fate in their hands on a large number of Bills.
Finally, following Labor's election loss, and the election of new Opposition Leader Anthony Albanese, the ALP's positions on all issues, including LGBTI issues, is now up for grabs. We will need to make sure that they do not back-track on any of the positive positions which they took to the election, including the full removal of discrimination against LGBT students and teachers. In this push, we should also engage with Rainbow Labow MPs, including Penny Wong, Louise Pratt, Julian Hill and the newly-elected Queensland Senator Nita Green.
[I have deliberately not mentioned the Australian Greens here, including bisexual Victorian Senator Janet Rice, because their support on LGBTI issues can usually be relied upon].
Senators Jacqui Lambie, Stirling Griff and Rex Patrick will play a significant role in determining what LGBTI law reforms can be achieved – and whether a Religious Pro-Discrimination Bill can be defeated.
One of the main lessons of the marriage equality campaign was the vital role of allies in achieving progress on LGBTI issues. This is equally important in terms of the push to protect LGBT students and teachers against discrimination and – if necessary – to fight against a Religious Pro-Discrimination Bill.
We have seen that the vast majority of Australians are already onside when it comes to protecting LGBT students against discrimination, with the immense public backlash against these exceptions when the Ruddock Review was leaked in October 2018 (and which prompted Morrison's promise in the first place).
With regards to protecting LGBT teachers, we must work better together with education unions (including the Australian Education Union, and Independent Education Union). The same applies to building our relationship with the ACTU, and union movement more broadly, to remove all religious exceptions from employment law, including the Fair Work Act 2009 (Cth).
Thinking about the potential Religious Pro-Discrimination Bill, the legislation itself presents us with natural allies – because it is not just LGBTI Australians who would be subjected to discrimination as a result.
A Religious Pro-Discrimination Bill could also increase discrimination against women, especially in relation to their marital or relationship status, and their ability to access reproductive health services. Unmarried/single mothers are at particular risk (alongside divorced people generally). It's time to build bridges between LGBTI and women's organisations to respond to this common threat.
Finally, perhaps the most important allies we have in this struggle are good people of faith. We simply cannot afford to let this issue be defined as 'god versus gays', especially because the majority of religious people support the equality of their fellow citizens – as demonstrated through the same-sex marriage postal survey.
Instead, our enemies are religious fundamentalist groups, like the ACL and some established churches (the formal organisations – not the followers), and any individuals who are acting in bad faith to impose their religious beliefs on others, including demanding the ability to lawfully discriminate against LGBTI people. They are who we are fighting against, not ordinary Australians.
This means that throughout this debate, no matter how ugly it may become, we should strive to be respectful of people's faith, or lack of faith, in the same way we are fighting for the right to be treated fairly, with decency and respect (some might even say at this point 'Do unto others…').
It may seem strange, given the current political environment in which we are operating and the threat of a Religious Pro-Discrimination Bill, to talk about opportunities for progress on LGBTI rights but there are several.
The first is for action to (finally) be taken to stop coercive and invasive surgeries and other medical interventions on intersex children. These human rights violations continue unabated, despite a bipartisan 2013 Senate Inquiry recommending that such surgeries and/or treatments be stopped.
In 2017-18, the Australian Human Rights Commission initiated a new project focusing on 'Protecting the human rights of people born with variations in sex characteristics in the context of medical interventions', with a final report expected shortly.
This will be an opportunity for non-intersex LGBT individuals and for LGBT/I organisations to support the work of groups like Intersex Human Rights Australia and their campaign to end these practices once and for all (noting that there is no right-wing, or left-wing, justification for such interventions, so there is no political rationale for the Government not to intervene).
The second opportunity is on ex-gay or ex-trans therapy, with the Morrison Liberal-National Government providing the following response to Equality Australia's pre-election survey:
"As the Prime Minister has said, the Morrison Government does not support LGBTIQ+ conversion therapy. The use of conversion therapy has long been discredited with no scientific or medical evidence to support its use.
"The Morrison Government remains committed to addressing the mental health of all Australians, including the LGBTI community, and this also relates to opposition to gay conversion therapy. The Government will work with the states, which have legal responsibility in this area, to ensure such practices are not supported or occurring" [emphasis added].
We should take them at their word and seek to make urgent progress to end this psychological torture.
The other main opportunities lie at state and territory level. This includes the ongoing campaign to provide trans and gender diverse people with better access to appropriate identity documentation.
With Tasmania recently passing best practice laws that allow individuals to update their birth certificate on the basis of self-identification – without the need for surgery, other treatment or medical approval – we must pressure the seven other jurisdictions to quickly follow suit.
It also includes working towards reform of state and territory anti-discrimination laws. Because, while the Sex Discrimination Act 1984 allows discrimination against LGBT students and teachers under Commonwealth law, some states and territories have adopted preferable provisions.
For example, last year the ACT amended its Discrimination Act 1991 to protect both LGBT students and teachers in religious schools against discrimination. Queensland and the Northern Territory already protected LGBT students against discrimination, while once again Tasmania has best practice laws in this area (their Anti-Discrimination Act 1998 only allows religious organisations to discriminate on the basis of religious belief, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics).
Given the vulnerability of LGBT kids in particular, there is no reason why we should not pressure state and territory governments to amend their own laws, even before the ALRC completes its report.
I have written about the threats we potentially face, as well as some of the uncertainty that now confronts us. But there is one thing that is absolutely sure: nothing will get better unless we act to make it better.
The Government won't make changes on our behalf out of the kindness of its heart. Just like with countless LGBTI law reforms in the past, the only way to improve our situation – especially for vulnerable members of our community – is to get involved and collectively force them to do it.
This will be especially important if the Morrison Government decides to introduce a Religious Pro-Discrimination Bill. We will need all hands on deck, including people who (completely understandably) needed to take time away after the horrific experience that was the same-sex marriage postal survey.
And so I would conclude by encouraging you to join one or more of the many LGBTI advocacy organisations that will be fighting on our behalf in the coming months and years. This includes:
NSW Gay & Lesbian Rights Lobby
Victorian Gay & Lesbian Rights Lobby
Equality Tasmania
A Gender Agenda
Just Equal
Rainbow Families
Rainbow Families Victoria
PFLAG Australia
(as well as plenty of others I have inadvertently omitted, including in the other states and territories).
You can also stay up to date with latest developments by following LGBTI Rights Australia on Facebook.
Finally, I will continue writing regular articles about the campaign to protect LGBT students and teachers in religious schools against discrimination, as well as key developments surrounding the Religious Anti- or Pro-Discrimination Bill. To receive these posts direct to your email, please sign up via the right-hand scroll bar on the desktop version of this blog, or near the bottom of the page on mobile. Thanks.
Posted in LGBTI anti-discrimination, Religious Exceptions	/ Tagged Christian Porter, Fair Work Act, gay Australia, homophobia, Jacqui Lambie, LGBT, LGBT students, LGBT teachers, Religious Discrimination Bill, religious freedom, religious schools, Ruddock Review, Sex Discrimination Act	/ Leave a comment
Putting the 'International' Back into IDAHOBIT: Supporting International LGBTI Rights
Posted on May 17, 2019 by Alastair Lawrie
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.
Today we celebrate the International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (variously abbreviated as IDAHO, IDAHOT, IDAHOTB or IDAHOBIT).
In Australia, we do a relatively good job of focusing on what the day means in terms of the challenges that remain in order to achieve lesbian, gay, bisexual, transgender and intersex (LGBTI) rights – domestically anyway.
However, we are much less successful in remembering the first word in the day's title, and highlighting the even greater barriers left in addressing and overcoming homophobia, biphobia, transphobia and intersexphobia globally.
According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), as of December 2019 there were 68 UN Members States in which consensual same-sex sexual acts remained criminalised, plus Palestine (Gaza), the Cook Islands, and some provinces in Indonesia (from pp47 State-Sponsored Homophobia Report: Global Legislation Overview Update December 2019).
A significant number of these countries are within our region. In Oceania, that includes:
Country Maximum Penalty for Homosexuality
Cook Islands 14 years imprisonment
Kiribati 14 years imprisonment
Papua New Guinea 14 years imprisonment
Samoa 5 years imprisonment
Solomon Islands 14 years imprisonment
Tonga 10 years imprisonment
Tuvalu 14 years imprisonment
There are a number of other countries that criminalise same-sex sexual activity in South-East Asia, too:
Brunei 10 years imprisonment
Malaysia 20 years imprisonment
Myanmar 10 years imprisonment
Singapore 2 years imprisonment
*As well as some provinces within Indonesia, including Aceh.
And Australia has another important connection with a large number of countries that still criminalise homosexuality around the world, with half being members of the Commonwealth (including more than half of countries within the Commonwealth itself).
Therefore, while Australia might have fully decriminalised homosexuality in 2016 (when Queensland finally equalised the age of consent for anal intercourse), there is still a long way to go on this issue internationally.
Source: ILGA
Of course, there is even further to go – both domestically and internationally – for trans and gender diverse people to have the right for their identity documentation to reflect their gender identity based on self-declaration, and to be able to live their lives free from discrimination, violence and in some countries criminalisation. For more, see ILGA's 2017 Trans Legal Mapping Report.
And, as on so many issues, progress on intersex rights has lagged even further behind, with very few countries following Malta's 2015 lead in banning coercive surgeries and other involuntary medical treatments on intersex people. That includes Australia, too, with governments at all levels failing to implement the recommendations of the 2013 Senate Inquiry on this subject in the intervening six years. [Unfortunately, I am note aware of an equivalent State-Sponsored Intersexphobia/Intersex Legal Mapping Report].
Thankfully, it's not all bad news. There has been some significant progress in recent years on at least some of these issues, not least of which was the historic September 2018 decision by the Supreme Court of India to declare section 377 of the Indian Penal Code unconstitutional, thereby legalising homosexuality in the second most-populous country on earth.
That case, after years of amazing advocacy by Indian activists, helps make the following graph look much more encouraging:
Nevertheless, there are still far too many countries where people are not free to love who they love, not able to identify with their gender and be protected against discrimination, violence and criminalisation, and not subject to coercive surgeries and other involuntary medical treatments because of their sex characteristics.
So, what can Australia do? There are a range of ways in which Australia can better support progress on LGBTI rights internationally, including the following:
Support decriminalisation as a key priority of foreign policy
Australia should support decriminalisation for all LGBTI people around the world as a key human rights objective of our foreign policy. This should include a primary focus on decriminalisation within our region, as well as within the Commonwealth.
Unfortunately, the most recent Foreign Policy White Paper makes exactly zero references to supporting LGBTI human rights (despite my submission calling for their inclusion).
Of course, achieving this goal depends on partnership with communities within these countries, not only because they are best placed to know how to advocate for decriminalisation, but also because Australia acting unilaterally would risk entrenching anti-LGBTI policies and laws.
Support LGBTI rights through international human rights architecture
This includes using our current term on the United Nations Human Rights Council to prioritise LGBTI rights, as well as actively supporting the reappointment of the UN Independent Expert on Sexual Orientation and Gender Identity. And it also includes regularly raising LGBTI rights issues within the Commonwealth Heads of Government framework (with the next CHOGM meeting in Rwanda next year).
Australia could also consider appointing an Ambassador for LGBTI Rights in the same way that we have appointed an Ambassador for Women and Girls.
Support LGBTI rights through foreign aid
Another way in which Australia can better support LGBTI rights internationally is by supporting LGBTI human rights through our foreign aid policies (and of course by ensuring our foreign aid Budget is increased overall, after a series of mean-spirited and unjustified cuts under the Liberal-National Government have reduced it to 0.19-0.21% of GDP, far short of the UN target of 0.70% and far short of our capacity, and responsibility, as one of the richest countries on the planet).
This could include funding for international LGBTI associations, such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), OutRight International and Kaleidoscope Trust, as well as other human rights organisations that include a focus on LGBTI rights (such as Human Rights Watch). It also means actively supporting the Commonwealth Equality Network, and LGBTI organisations working towards decriminalisation within our region.
Accept LGBTI refugees and people seeking asylum
We should acknowledge that, while the aim is to ensure lesbian, gay, bisexual, transgender and intersex people are safe everywhere, this is not currently the case and will not be possible in some places for some time. Australia should therefore ensure its refugee framework helps to protect LGBTI people fleeing persecution, including through appropriate assessment processes, and providing improved support services post-resettlement. Oh, and that obviously means not detaining, processing and settling LGBTI refugees offshore, including in countries that criminalise them (for more, see Australia's (Mis)Treatment of LGBTI Refugees).
Set a better example on LGBTI rights domestically
Australia's ongoing (mis)treatment of refugees, including LGBTI people seeking asylum, raises another key challenge – in order to better support human rights internationally, we must be seen to respect human rights domestically. That is obviously not currently occurring when it comes to our refugee policy.
It is also not the case in terms of our own treatment of trans and gender diverse people. We must make sure all states and territories follow Tasmania's recent lead in best practice access to identity documentation on the basis of identity not surgery. And we must finally make long overdue progress on intersex human rights, including protecting the bodily autonomy and integrity of intersex children against coercive surgeries and other involuntary medical treatments.
As we commemorate International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (IDAHOBIT) today, we should by all means celebrate how far we have come within Australia, as well as highlighting those challenges that remain domestically. But we must not forget the 'International' focus of the day, and the important role Australia can play in making progress on LGBTI rights everywhere, for everyone.
Posted in LGBTI, LGBTI international	/ Tagged Commonwealth, decriminalisation, gay Australia, homosexuality, IDAHO, IDAHOBIT, IDAHOT, IDAHOTB, ILGA, intersex, LGBT Australia, trans, United Nations	/ 1 Comment