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Alastair Lawrie by Alastair Lawrie - 14h ago

Safe Schools is, simultaneously, one of the simplest policy issues in Australia, and one of the most complex.

Simple, because it is an effective, evidence-based program aimed at reducing bullying of one of the most vulnerable groups in our society: young lesbian, gay, bisexual, transgender and intersex (LGBTI) people. Surely, supporting this group, and lowering the disproportionate rates of social exclusion, and mental health issues, that they experience, should be straightforward?

Complex, because – well, have you listened to (most) Liberal and National politicians over the past few years? Did you read The Australian newspaper in 2016? [*Neither is recommended of course, but if you did you would have heard and seen a barrage of criticism of this initiative addressing anti-LGBTI bullying]

This little program became the focal point of one of the biggest culture wars in our recent history, such that among right-wing circles even the name Safe Schools has itself become toxic, synonymous with all manner of imagined problems.

It is hard to remember that, at the federal level, Safe Schools was initially the epitome of bipartisanship – announced and funded by the then Rudd Labor Government before the 2013 election, before being launched under the Abbott Coalition Government in mid-2014.

How did we get from there, to wherever the hell it is we are now? I’m not proposing to rehash that depressing history – instead, I would strongly suggest you read the excellent Quarterly Essay ‘Moral Panic 101: Equality, acceptance and the Safe Schools scandal’ by Benjamin Law.

However, I am interested in the why – why did a simple and straight-forward program aimed at reducing homophobia, biphobia, transphobia and intersexphobia in schools provoke such an angry response from so-called conservatives around the country?

Part of the explanation can be found in the response of one of the program’s greatest advocates, Victorian Premier Daniel Andrews, to the decision by the then Turnbull Liberal National Government to ‘review’ the program in early 2016. From his Facebook post:

“Schools have to be a safe place for every kid – no exceptions.

Teachers have to be given the tools to deal with every situation – no excuses.

And there is absolutely nothing wrong with this effective little program, which achieves the above two aims and nothing more.

But let’s be honest here: I don’t think these extreme Liberals are actually offended by the structure of the program, or the teachers who lead it.

I just think they’re offended by the kids who need it.

They don’t like the fact that some young people might be different.

And I’m sick of it.

I’m sick of Liberal politicians telling our kids that there’s something wrong with them – when there isn’t.

I’m sick of Liberal politicians trying to push us all back, whenever we all take a few steps forward.

Cory Bernadi [sic] says teenagers are too young to know about love and care and acceptance.

Well, I can assure you, Senator: they know a whole lot more than you.”

This offence – at the fact LGBTI kids exist – was so great that, even though the independent review found the program to be effective, age-appropriate and consistent with the curriculum, they axed it anyway. The NSW Liberal National Government, and other conservative administrations around the country, quickly followed suit.

But while the offence of Liberal politicians that LGBTI kids have the temerity to exist might be part of the explanation for Safes Schools’ axing, it is by no means a complete explanation.

One perhaps even more important contributing factor is discussed in Benjamin Law’s Quarterly Essay, in response to the changes by then Education Minister Simon Birmingham that “schools must now obtain the approval of parent bodies to train teachers [in Safe Schools], and before any lessons are taught.”

As Paul Thoemke is quoted on page 57/58 in relation to trans children: “This may be the most politically unsavvy thing I can say. But I sometimes think the greatest risk for these kids is their families… Family life can be awful for a homosexual child, too. Youth who come out meet with parental grief, confusion, denial, or rage so hot that, for everyone involved, the prospect of the child eating from dumpsters or sleeping under bridges may be preferable to coexisting with them under the same roof.”

This really is the crux of the debate. Some parents are so homophobic, biphobic, transphobic or intersexphobic (often all four) that they would prefer LGBTI children to be in a wooden box rather than sitting at a wooden desk in a safe and supportive classroom. And not ‘just’ their own children, but all LGBTI kids.

Of course, the majority of parents do not see this issue in this warped way. They, like the LGBTI community itself, want to see all children have the ability to live their best lives.

Indeed, one of the features of this debate is that it is the LGBTI community and its allies who are arguing for the best interests of kids, while our opponents, who have long (falsely) railed against us with the ‘Won’t somebody please think of the children?’ mantra in the name of ‘traditional family values’, that are acting in the interests of intolerant adults.

Unfortunately, in 2016 the Turnbull Liberal-National Government listened to the hateful minority, followed by a number of states and territories.

As a result, in early 2019, the Safe Schools program is only functional in Victoria, the ACT (called the Safe and Inclusive Schools Initiative), Western Australia (called the Inclusive Education Program) and the Northern Territory.

It has been replaced by general, and generic, ‘anti-bullying programs’ in NSW, Tasmania and South Australia (disappointingly the Queensland Labor Government has never fully supported Safe Schools), in part based on the argument that LGBTI kids don’t deserve a special program to specifically promote acceptance of their difference.

Law takes apart this view in his Quarterly Essay on page 64, responding to an example about Hindu students from Elisabeth Taylor of the Australian Christian Lobby:

“When Taylor tells me this, I’m initially taken by her argument. Why should minorities of any kind have special treatment? Why should queer kids get the attention when others [sic] kids are being bullied too? It takes a while before the obvious presents itself: first, that general anti-bullying measures have existed for decades and haven’t helped queers at school. Second, that Safe Schools doesn’t exists solely for LGBTIQ youth, but also for the countless other Australian kids who are agents – as well as victims – of schoolyard homophobia. Third: Hindu children are born into Hindu families and communities, who affirm their religion, culture and worldview. Lesbian, gay, bisexual, transgender and intersex young people do not have that luxury. Gays are mostly raised in heterosexual families. And if our families and communities don’t accept us, there are consequences. One 2010 national study found that “rates of self harm are higher in [queer] young people who are not supported when they disclose to mother, dad, brother or sister.” If these kids aren’t safe at home or school, where else do they have?”

In 2019, we still have Governments at Commonwealth level, and in half the states and territories, that really don’t seem to care about the answer to that question.

Who don’t support the right of LGBTI kids simply to be – but instead listen to a vocal minority of bigots who would prefer LGBTI kids not to be. Themselves. Supported. Or Accepted.

The question is what we do about it. I would argue the onus is on us, the LGBTI community, our allies, and indeed every Australian who supports diversity, of sexual orientations, gender identities and sex characteristics, to vote against those Governments.

Because our kids are counting on us.

Victorian Premier Daniel Andrews has shown the leadership too many of his Commonwealth, state and territory counterparts refuse to.

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

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

**********

Treasurer Josh Frydenberg MP

c/- prebudgetsubs@treasury.gov.au

Monday 28 January 2019

Dear Treasurer

Please Abolish the National School Chaplaincy Program

 

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

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

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

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

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

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

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

‘Commonwealth not to legislate in respect of religion

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

**********

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

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

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

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

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

Thank you in advance for taking this submission into consideration.

Sincerely

Alastair Lawrie

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

**********

Before you go, I have a small favour to ask. I have been nominated for the Pro Bono Australia Impact 25 Awards for my contribution to the not-for-profit sector, particularly for my contribution to LGBTI community organisations and advocacy. If you are reading this before 31 January 2019, please vote at the following link: https://www.surveymonkey.com/r/CDS8JXH Thanks, Alastair

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

Footnotes:

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

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

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Alastair Lawrie by Alastair Lawrie - 3w ago

Did you know that the NSW Personal Development, Health and Physical Education K-10 Syllabus does not require schools to teach students what lesbian, gay, bisexual, transgender and intersex mean, or even that they exist?

The NSW Education Standards Authority reviewed the PDHPE curriculum in 2017 (see my submission to that consultation here), and released its consultation report and final K-10 syllabus in early 2018.

It is now being progressively rolled out in NSW classrooms, with full implementation by the start of the 2020 school year.

This is despite the fact the new PDHPE curriculum is entirely unfit for the 21st century, contributing to the ongoing invisibility of lesbian, gay, bisexual, transgender and intersex (LGBTI) content, and therefore of LGBTI students.

This can be seen in a number of ways. The first, and perhaps most important, is in its use – or, more accurately, lack of use – of the terms lesbian, gay, bisexual, transgender and intersex themselves.

In the 138 pages of the syllabus, these words occur three times each.[i] However, two out of these three appearances are found in the document’s glossary – with a definition of each term, and then as part of the broader definition of LGBTI people.

But teachers do not teach the glossary to their students. Instead, they are only required to teach the content for each year stage of the syllabus. And the terms lesbian, gay, bisexual, transgender and intersex can be found only once in the prescribed content, together on page 96:

‘investigate community health resources to evaluate how accessible they are for marginalised individuals and groups and propose changes to promote greater inclusiveness and accessibility eg people in rural and remote areas, lesbian, gay, bisexual, transgender and intersex people (LGBTI), people from culturally and linguistically diverse (CALD) backgrounds, people with disability.’

The problem with this is that LGBTI comes after ‘for example’ and therefore even referring to LGBTI people in this exercise is, on a prima facie reading, optional.

This issue – the status of content that appears after ‘eg’ in the syllabus – was raised, by myself and others, during the consultation process. The answer at the time was that whether this information was taught was at the discretion of the school and/or teacher. This appears to be confirmed in the consultation report, which states on page 18 that:

‘The content defines what students are expected to know and do as they work towards syllabus outcomes. Content examples clarify the intended learning. Teachers will make decisions about content regarding the sequence, emphasis and any adjustments required based on the needs, interests, abilities and prior learning of students.’

In practice, LGBTI people appear just once in the entire NSW PDHPE K-10 Syllabus, as part of an exercise about marginalised groups and inclusiveness, but schools and/or teachers can choose to remove even this most cursory of references.[ii]

This marginalisation, and exclusion, of LGBTI content and students is simply not good enough.

Another cause of the curriculum’s problems can be found if we return to the glossary, and inspect the definition of sexuality:

‘A central aspect of being human throughout life. It is influenced by an interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors. It is experienced and expressed in thoughts, feelings, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships.’

On a philosophical level, this is actually quite an inclusive and even progressive view of the complexity of human sexuality. But on a practical level, the absence of specificity in this definition undermines any obligation for schools and/or teachers to teach about real-world diversity of sexual orientation.

This lack of prescription means that, on page 96 – which is the only place in the general syllabus where ‘sexuality’ appears not following an ‘eg’ (and therefore is the only reference that isn’t optional)[iii] – content to ‘explore external influences on sexuality and sexual health behaviours and recognise the impact these can have on their own and others’ health, safety and wellbeing’ does not necessarily include lesbian, gay or bisexual sexualities.

It is a similar story in terms of gender,[iv] with the glossary definition (‘Refers to the concepts of male and female as well as the socially constructed expectations about what is acceptable for males and females’) not particularly useful in ensuring students learn about the diversity of gender identities. There also do not appear to be any references to non-binary or gender diverse identities.[v]

These definitions of sexuality and gender, and how they are employed throughout the syllabus, could be interpreted by some supportive schools and teachers to include lesbian, gay, bisexual and transgender subject matter. But there is absolutely nothing that ensures schools and/or teachers must teach this content.

This erasure, or invisibilisation, of LGBTI people in the NSW PDHPE K-10 Syllabus is nothing short of homophobic, biphobic, transphobic and intersexphobic.

Which makes it somewhat ironic then that there are more references to homophobia and transphobia in its content than there are to LGBTI people.

On page 77: ‘describe forms of bullying, harassment, abuse, neglect, discrimination and violence and the impact they have on health, safety and wellbeing, eg family and domestic violence, homophobic and transphobic bullying, racism, cyberbullying, discrimination against people with disability.’

And on page 88: ‘propose protective strategies for a range of neglect and abuse situations, eg family and domestic violence, bullying, harassment, homophobia, transphobia and vilification.’

Although note of course that both times homophobia and transphobia appear after an ‘eg’, meaning whether they are taught in these contexts remains optional (and obviously neither of these sections explicitly refers to biphobia or intersexphobia either).[vi]

Another major problem with the new NSW PDHPE K-10 Syllabus is its approach to sexual health.

There are only two compulsory references to sexual health in the content of the syllabus, one of which we have already seen (on page 96: ‘explore external influences on sexuality and sexual health behaviours and recognise the impact these can have on their own and others’ health, safety and wellbeing’).

The other reference, on page 95, describes ‘identify methods of contraception and evaluate the extent to which safe sexual health practices allow people to take responsibility for managing their own sexual health.’

There are two problems with this statement. First, it puts the emphasis on ‘contraception’ when sexual health, and LGBTI sexual health especially, is a much broader concept. Second, it does not specifically mandate that schools and teachers instruct students about sexually transmissible infections (STIs).

In fact, quite astoundingly, the only reference to STIs in the general syllabus,[vii] on page 84 (‘identify and plan preventive health practices and behaviours that assist in protection against disease, eg blood-borne viruses, sexually transmissible infections’) makes teaching about them optional. The only time the term HIV even appears in the entire document is in the glossary.[viii]

In terms of STI-prevention, it seems the NSW PDHPE syllabus has actually gone backwards from the previous 2003 document, which at least prescribed that students learn about:

‘sexual health

-acknowledging and understanding sexual feelings

-expectations of males and females

-rights and responsibilities in sexual relationships

-sexually transmitted infections, blood-borne viruses and HIV/AIDS’ as well as to

‘identify behaviours that assist in preventing STIs, BBVs and HIV/AIDS and explore the interrelationship with drug use.’[ix]

**********

The aim of the PDHPE K-10 Syllabus is explained on page 12 of the document:

‘The study of PDHPE in K-10 aims to enable students to develop the knowledge, understanding, skills, values and attitudes required to lead and promote healthy, safe and active lives.’

Unfortunately, the more than 100 pages of the new syllabus which follow that statement make clear that it does not, and cannot, promote healthy, safe and active lives for lesbian, gay, bisexual, transgender and intersex students. After all, it is impossible for students to learn everything they need to be safe when they cannot see themselves in the curriculum.

This document represents a complete derogation of duty by the NSW Education Standards Authority, and Education Minister Rob Stokes and the Berejiklian Liberal-National that have overseen them.

They have also failed in their duty to keep all students safe, LGBTI and non-LGBTI alike, given the paucity of sexual health information, and specific content around sexually transmissible infections, in the syllabus.

To some extent it is perhaps a little unfair to single out NSW for these failures, because they are not alone in responsibility for them.

As this author has previously written, the national Health and Physical Education curriculum (which provides the framework for the NSW syllabus) developed earlier this decade by the Australian Curriculum, Assessment and Reporting Authority (ACARA), also abjectly fails to take the needs of LGBTI students seriously.

Despite repeated calls for him to intervene, then-Commonwealth Education Minister Christopher Pyne refused to take action to make LGBTI-inclusive content a priority either.

Ensuring that all teachers, in all schools, provide health and physical education content that is inclusive of all students and their needs has been placed in the ‘too hard basket’ by educational authorities, and Ministers, at multiple levels of government over multiple years.

It seems they would prefer to pretend LGBTI students do not exist rather than to take on the influence of religious schools and others who see anything that promotes the view that LGBTI people are part of the natural, beautiful diversity of humanity as some sort of ‘radical agenda’.

In this respect, the exclusion of LGBTI content from the NSW PDHPE K-10 Syllabus shares a lot in common with the current debate about the exceptions to anti-discrimination law that allow religious schools to discriminate against LGBT students, something the NSW Government has also ruled out fixing.

As with that issue, the losers out of the new PDHPE curriculum are the lesbian, gay, bisexual, transgender and intersex kids who have the right to learn about themselves, and to receive the information they need to keep themselves safe, but who are instead being made to feel invisible.

**********

Before you go, I have a small favour to ask. I have been nominated for the Pro Bono Australia Impact 25 Awards for my contribution to the not-for-profit sector, particularly for my contribution to LGBTI community organisations and advocacy. If you are reading this before 31 January 2019, please vote at the following link: https://www.surveymonkey.com/r/CDS8JXH Thanks, Alastair

NSW Education Minister Rob Stokes has overseen the development of a PDHPE K-10 Syllabus that is almost completely silent on LGBTI issues.

Footnotes:

[i] The term bisexual actually appears four times, with an additional appearance in the glossary in the definition of ‘same-sex attracted’, alongside ‘homosexual’ in its only appearance.

[ii] This interpretation – that teaching the examples which are included in the content is optional – is supported by page 24 of the consultation report, which states: ‘The content is presented to be inclusive and provide the flexibility for delivery based on the context and the ethos of schools. Schools will make decisions about the scope and range of examples to illustrate the diversity of groups in Australian society.’

[iii] There is a separate reference to ‘sexuality’ that is not optional on page 119 in the Life Skills section, for students with special needs, although it does not specifically refer to diversity of sexual orientations.

[iv] The definition of sex on page 135, described as ‘The biological characteristics that define humans as female or male. While these sets of biological characteristics are not mutually exclusive, as there are individuals who possess both, they tend to differentiate humans as males and females’, also does not ensure students learn about variations of sex characteristics.

[v] The definition of transgender or trans on page 137 states ‘A general term for a person whose gender is different to their sex at birth’.

[vi] As an aside, it must surely be difficult to teach students about homophobia and transphobia when the syllabus doesn’t require instruction about the terms lesbian, gay, bisexual, transgender and intersex in the first place.

[vii] At a minimum the Life Skills content for students with special needs makes teaching about sexually transmissible infections mandatory (on page 119: ‘recognise issues of safety in relation to sexual relationships, including contraception, sexually transmissible infections’).

[viii] In the glossary definition of sexually transmissible infections: ‘Any infection that can be passed from one person to another during sexual activity. Sexually transmissible infections include chlamydia, herpes, gonorrhea, syphilis, genital herpes, scabies, pubic lice, hepatitis and HIV.’

[ix] On page 27 of the 2003 PDHPE 7-10 Syllabus, here.

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Australian Law Reform Commission

via familylaw@alrc.gov.au

Tuesday 13 November 2018

To whom it may concern

Submission in response to the Review of the Family Law System Discussion Paper

Thank you for the opportunity to provide a submission to this review.

While there are a number of important issues raised in the Discussion Paper, I will restrict my comments to one issue in particular: the welfare jurisdiction, and specifically its impact on people born with variations in sex characteristics.

This issue is discussed in Chapter 9 of the Discussion Paper, and specifically addressed in Question 9-1:

In relation to the welfare jurisdiction:

  • Should authorisation by a court, tribunal, or other regulatory body be required for procedures such as sterilisation of children with disability or intersex medical procedures? What body would be most appropriate to undertake this function?
  • In what circumstances should it be possible for this body to authorise sterilisation procedures or intersex medical procedures before a child is legally able to personally make these decisions?
  • What additional legislative, procedural or other safeguards, if any, should be put in place to ensure that the human rights of children are protected in these cases?

I will seek to answer these question as both an advocate for the overall lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and specifically as an ally for intersex people, including as a supporter of Intersex Human Rights Australia (IHRA).

In this capacity – as an intersex ally – I have affirmed the March 2017 Darlington Statement of intersex advocates and organisations from Australia and Aotearoa/New Zealand.

That Statement provides a clear set of principles which guide the response to the current Discussion Paper. This includes:

Article 5: Our rights to bodily integrity, physical autonomy and self determination.

 

Article 7: We call for the immediate prohibition as a criminal act of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent. We call for freely-given and fully informed consent by individuals, with individuals and families having mandatory independent access to funded counselling and peer support.

 

Article 16: Current forms of oversight of medical interventions affecting people born with variations of sex characteristics have proven to be inadequate.

a. We note a lack of transparency about diverse standards of care and practices across Australia and New Zealand for all age groups.

b. We note that the Family Court system in Australia has failed to adequately consider the human rights and autonomy of children born with variations of sex characteristics, and the repercussions of medical interventions on individuals and their families. The role of the Family Court is itself unclear. Distinctions between ‘therapeutic’ and ‘non-therapeutic’ interventions have failed our population.

 

Article 22: We call for the provision of alternative, independent, effective human rights-based oversight mechanism(s) to determine individual cases involving persons born with intersex variations who are unable to consent to treatment, bringing together human rights experts, clinicians and intersex-led community organisations. The pros and cons for and against medical treatment must be properly ventilated and considered, including the lifetime health, legal, ethical, sexual and human rights implications.

 

Article 23: Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives [emphasis in original].

 

I also endorse the 7 May 2018 submission by Intersex Human Rights Australia to the Review of the Family Law System – Issues Paper.

This includes supporting their analysis of the serious problems caused by the jurisprudence of the Family Court to date in this area (on pages 33 to 42), specifically:

  • Welfare of a Child A (1993)
  • Re: Carla (Medical procedure) (2016)
  • Re: Lesley (Special Medical Procedure) (2008), and
  • Re: Kaitlin (2017).

The horrific circumstances of the Re: Carla case in particular demonstrate the acute failure of the Family Court to adequately protect the human rights of children born with intersex variations. Instead, the Family Court appears more likely to be complicit in, and sign off on, these same human rights violations.

It is hard not to agree with IHRA’s conclusion that: ‘this 2016 Family Court of Australia case is deeply disturbing, exemplifying the way that the human rights of intersex children are violated with inadequate evidence for social and cosmetic purposes’ (page 39).

I further endorse the summary findings of the IHRA submission (on page 42) including that:

  • The Family Court system has not understood the intersex population, nor the nature of procedures in cases that it has been asked to adjudicate. Most cases are not subject to even this limited form of oversight.
  • The Family Court has failed to properly utilise its procedures in order to ensure that the best interests of intersex children have been thoroughly investigated and understood within the medical context, and within the human rights context, and
  • The ‘best interests of the child’ has been interpreted through a narrow lens, manipulated to facilitate experimental treatments that, contrary to Article 3 of the Convention on the Rights of the Child, conflict with the child’s human dignity and right to physical integrity. This has been facilitated through appeals to gender stereotypes and social norms with insufficient attention to the long-term health and well-being interests of the child.

 

And I support the recommendations made by IHRA on pages 43 and 44, including that:

Recommendation 4. Any non-deferrable interventions which alter the sex characteristics of infants and children proposed to be performed before a child is able to consent on their own behalf should be identified as medical treatment outside the scope of parental consent and requiring authorisation of an independent body (hereafter referred to as the ‘decision-making forum’). A decision-making forum must bring together human rights experts, clinicians, and intersex-led community organisations.

 

Recommendation 5. Whether consent is provided by the intersex minor or a decision-making forum, the pros and cons of medical treatment must be properly ventilated and considered, including the lifelong health, legal, ethical, sexual and human rights implications. Consent or authorisation for treatment must be premised on provision of all the available medical evidence on necessity, timing, and evaluation of outcome of medical interventions. Where this is no clinical consensus, this must be disclosed.

 

Recommendation 10. The current threshold criteria to determine whether or not a procedure is within the scope of parental authority is whether it is therapeutic or non-therapeutic. This criterion has failed to distinguish between interventions that are strictly clinically necessary and those that are not; between interventions based on culturally-specific social norms and gender stereotypes and those that are not. This criterion should be abandoned as a threshold test of whether a medical procedure requires oversight or authorisation from a decision-making forum, and

 

Recommendation 11. Children born with variations of sex characteristics must be treated by multi-disciplinary teams. Multi-disciplinary teams must operate in line with transparent, human rights-based standards of care for the treatment of intersex people and bodies. Multi-disciplinary teams in hospitals must include human rights specialists, child advocates, and independent intersex community representatives.

 

Based on all of the above factors, and returning to Question 9-1 in the Discussion Paper, my approach to these issues is therefore:

  • All deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children with variations in sex characteristics without personal consent should be prohibited as criminal acts.
  • Where medical interventions on infants and children with variations in sex characteristics are considered non-deferrable, this must be subject to genuine independent oversight.
  • Based on the advice of Intersex Human Rights Australia, the experiences of far too many people born with intersex variations, and the jurisprudence cited earlier, adequate oversight is not being provided currently. The Family Court has failed, in its welfare jurisdiction, to protect the welfare of intersex infants and children.
  • Given this, the Family Court should no longer perform this function. Instead, a new independent authority should be created to oversee issues related to non-deferrable medical interventions on infants and children with variations in sex characteristics.
  • This new independent authority should primarily be guided by human rights considerations, including the human rights of the child concerned – rather than the current approach which both prioritises and privileges a medicalised approach to these questions.
  • Consequently, this new independent authority should receive evidence and information from human rights and children’s rights experts, from intersex-led community organisations and peers, alongside clinical and psychosocial experts. Only by hearing from all of these sources can the issues be properly ventilated.
  • This new independent authority should be national, both so that it can help ensure greater consistency, but also to assist with the transparency of and accountability for its decision-making.

Thank you for the opportunity to provide this submission to this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely,

Alastair Lawrie

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Next Thursday, 15 November, is the one-year anniversary of the announcement of the results of the same-sex marriage postal survey, in which 61.6% of Australians said yes to equality.

And December 7 will mark 12 months since the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which finally legalised same-sex marriage in this country.

With both milestones rapidly approaching, it is likely we will witness a large number of Liberal Party MPs and Senators try to claim credit for achieving marriage equality.

Indeed, now-former Prime Minister Malcolm Turnbull kicked off this predictable right-wing festival of self-congratulation on Thursday night’s QandA,[i] commenting that:

“You know, think of the big social reforms, legalising same-sex marriage. I mean, what a gigantic reform that was, I was able to do that … I legislated it, right? So I delivered it.”

This statement is about as far removed from the truth as the nonsense that emanates daily from Donald Trump’s twitter account.

Rather than ‘delivering’ this important reform, the Liberal Party was in fact the greatest obstacle standing between LGBTI Australians and the right to marry.

In case you disagree – or have forgotten the destructive role played by the Liberals on this issue over many years – here’s a reminder of what they actually did:

  1. The Liberal Party banned marriage equality in the first place

It was John Howard’s Liberal-National Government that prohibited same-sex marriage in August 2004.[ii] While this was prompted by couples who had wed overseas seeking recognition of their marriages under Australian law, it was primarily motivated by the desire to wedge the Labor Party on this issue ahead of the federal election later that year. Sadly it would not be the last time the Liberal Party played with the lives of LGBTI people for base political reasons.

  1. The Liberal Party refused to allow Australians to marry overseas

The Howard Liberal-National Government actually went further than merely refusing to recognise the marriages of couples who had wed overseas. They then refused to issue Certificates of No Impediment to Australians who wanted to get married in countries where it was legal, even where one member of the couple was from the other, more-progressive country. This was an incredibly petty and mean-spirited move.

Fun Fact: The Attorney-General who implemented this pathetic policy was the same person who led the recent Religious Freedom Review which recommended that religious schools continue to be allowed to discriminate against LGBT students and staff, one Philip Ruddock.

  1. The Liberal Party voted against marriage equality in September 2012

It took eight years before there was a genuine opportunity to repeal the Howard Liberal-National Government’s ban on same-sex marriage. In late 2012, Parliament voted on ALP MP Stephen Jones’ private members’ bill.

In line with the hard-fought, and hard-won, decision at its December 2011 National Conference, the Gillard Labor Government gave its members a conscience vote. The majority of ALP MPs and Senators voted in favour of marriage equality.[iii]

On the other hand, every single Liberal Party MP and Senator, bar one, voted against same-sex marriage. That includes then-Opposition Leader Tony Abbott, Malcolm Turnbull, Scott Morrison, George Brandis and Dean Smith. The only notable, and noble, exception was Queensland Senator Sue Boyce.

The Liberal Party cannot expect to be rewarded for the fact that same-sex marriage was legalised on December 2017 when they were the ones who stopped it from being passed more than five years earlier.

  1. The Liberal Party refused to hold a parliamentary vote on marriage equality

Following its election in September 2013, Tony Abbott’s Liberal-National Government simply refused to hold another ordinary parliamentary vote on same-sex marriage. This recalcitrant approach continued even after it became apparent the majority of MPs and Senators now supported marriage equality.

  1. The Liberal Party challenged the ACT’s same-sex marriage laws

While the Abbott Liberal-National Government did absolutely nothing to achieve marriage equality in Commonwealth Parliament, they did take action in at least one area: they challenged the validity of the recently-passed ACT Government’s same-sex marriage laws in the High Court.

In fact, this was one of the first things the newly-elected government did on any issue, full stop, revealing its fundamental priority was to stop marriage equality in any way possible.

This challenge was ultimately successful, meaning that the marriages of 31 couples were effectively annulled.

Fun Fact: The Attorney-General who instigated this High Court challenge, that overturned the marriages of 62 people who his own Government would not allow to marry because of their sexual orientation and/or gender identity, would later claim that marriage equality was one of his, and his Government’s, greatest achievements, one George Brandis.

  1. The Liberal Party proposed an unnecessary, wasteful, harmful and divisive plebiscite

In August 2015, with public support for marriage equality continuing to build, and the Abbott Liberal-National Government under mounting pressure to finally do something on this topic, they chose not to do the one thing that would actually resolve it (hold a parliamentary vote).

Instead, after a six-hour joint party-room meeting, they proposed a same-sex marriage plebiscite. Despite changing leaders the following month, new-Prime Minister Malcolm Turnbull continued to support this policy, including in the lead-up to the 2016 Federal election and beyond.

A plebiscite like this was essentially unprecedented – there had been only one plebiscite in the previous 98 years, and that was on the national anthem. It was unnecessary, and – at an estimated cost of $158.4 million – it was fundamentally wasteful too. LGBTI Australians also justifiably feared that, subjecting our relationships and rights to months of public debate would be incredibly divisive, and cause significant harm to the most vulnerable members of our community.

It should be remembered that the idea for a plebiscite was only being pushed by those who opposed marriage equality, including Abbott himself, the Australian Christian Lobby and other religious extremists. It was never designed with the best interests of the LGBTI community in mind.

  1. The Liberal Party held an unnecessary, wasteful, harmful and divisive postal survey

 

After months of intense lobbying by LGBTI community advocates and organisations, the ALP, Greens and members of the cross-bench rejected the Turnbull Liberal-National Government’s plebiscite in the Senate in October 2016.

Despite this, Prime Minister Turnbull and the Coalition still refused to hold a straight-forward parliamentary vote. Instead, in August 2017 they proposed a same-sex marriage ‘postal survey’.

This was even more unprecedented, and was an abuse of the power of the Australian Bureau of Statistics’ power to collect, well, statistics. Despite the fact the High Court found it was technically lawful, it could at best be described as ethically dodgy, and at worst a perversion of Australian democracy.

Like the plebiscite, the postal survey was entirely unnecessary, and completely wasteful, ultimately costing taxpayers $80.5 million. And for LGBTI Australians and rainbow families its impact was exactly as bad as anticipated, unleashing a torrent of homophobia and transphobia, with the worst attacks of the bigoted No campaign reserved for trans and gender diverse young people.

Of course, the architects of the postal survey didn’t care about this negative outcome. Because the postal survey was never about us. It was put forward as a quick political fix for the Liberal Party, who knew they couldn’t continue to oppose marriage equality in the lead-up to the 2019 Federal election, but whose homophobic party-room members refused to hold a parliamentary vote without conducting a costly (in multiple senses of the word) public debate beforehand.

And if you disagree with this analysis, perhaps you’ve forgotten whose idea the postal survey was, one Peter Dutton.

  1. The Liberal Party didn’t actually pass marriage equality

This point might sound strange (especially to new readers of this blog), but it is an important one to make. Because while Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 finally granted same-sex and gender diverse[iv] couples the right to marry, it did not deliver true equality.

A hint lies in the title. This legislation did not just amend the Marriage Act 1961 to ensure marriage was available to all couples, it also added new rights for individuals and organisations to discriminate against LGBTI couples on the basis of religious prejudice.

This included permitting existing civil celebrants to register as ‘religious marriage celebrants’ and consequently putting up signs saying ‘no gays allowed’. These are not ministers of religion, and the ceremonies they conduct are not religious. But the law, as passed, allows these individuals to discriminate on the basis of their homophobia and transphobia.

Smith’s Marriage Amendment (Definition and Religious Freedoms) Act also introduced offensive provisions allowing discrimination by religious organisations in the Marriage Act itself. This includes section 47B:

A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Similar provisions allowing discrimination by religious organisations already existed in the Commonwealth Sex Discrimination Act 1984, so at best they were unnecessary here. At worst, because this amendment was phrased as a ‘positive right’, this allows new discrimination, in particular because it is more likely to overrule the better anti-discrimination laws of some states and territories (especially Tasmania’s Anti-Discrimination Act 1998).

It should be noted that these discriminatory provisions were not previously required with respect to divorced people remarrying – another issue on which there are strong religious beliefs. The fact they were introduced last year reveals they were motivated not by so-called ‘religious freedom’, but by homophobia and transphobia masked in that language.

By introducing new forms of discrimination, Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 delivered same-sex marriage, but it most definitely did not achieve marriage equality.[v]

  1. The majority of Liberal Party MPs and Senators voted for even more discrimination

Despite the fact the Smith Bill did not deliver equality to begin with, the majority of Liberal Party MPs and Senators voted in favour of at least some (and in some cases all) of the amendments that would have allowed even more discrimination against LGBTI couples.[vi] The only reason these were defeated was because all ALP and Greens MPs and Senators opposed them, alongside a small minority of Coalition parliamentarians.

These (thankfully rejected) amendments included granting individuals the right to discriminate in the provision of goods and services on the basis of their ‘religious marriage beliefs’, as well as personal views that same-sex relationships are wrong, or that trans people don’t exist.

The then-Attorney-General, George Brandis, even tried to incorporate Article 18 of the International Covenant of Civil and Political Rights into the Marriage Act 1961 (through an amendment that ‘Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching’) while conveniently ignoring the limitation in Article 18(3): that religious freedom can be limited to protect the fundamental rights and freedoms of others (including the right to non-discrimination). Oh, and he moved an amendment that all civil celebrants should be able to discriminate against LGBTI couples because of their personal religious or conscientious beliefs.

It is offensive for Liberals to now claim credit for delivering marriage equality when the majority of them voted for it not to be equal.

Fun Fact: Our new Prime Minister, Scott Morrison, voted for every amendment in the House of Representatives that sought to increase discrimination against LGBTI couples. This included supporting having two different definitions of marriage (one for ‘traditional marriage’ – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life – and one for everybody else – the union of 2 people to the exclusion of all others, voluntarily entered into for life). He also introduced his own amendments to the Bill, which included protecting individuals who discriminate against others because of transphobic beliefs that ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth’. He might now be Leader of the country, but with views like that he’ll never be a true leader.

  1. Even after the postal survey, a significant minority of Liberal Party MPs and Senators voted against same-sex marriage

The Liberal Party banned marriage equality in 2004. They voted against it in September 2012. They refused to hold a simple parliamentary vote following their election in 2013. They tried and failed to hold a plebiscite in 2016. They ‘succeeded’ in holding a postal survey in 2017, in which more than three-in-five Australians said yes to equality.

After forcing us wait for 13 years, and making us jump through hoops that no other group in Australia has ever had to before (and hopefully none will have to again), a significant minority of Liberal MPs and Senators still couldn’t bring themselves to vote for the ability of all couples to marry, irrespective of sexual orientation or gender identity.

In the Senate, Liberals Concetta Fierravanti-Wells, Eric Abetz and Slade Brockman, and Nationals John Williams, Matt Canavan and Barry O’Sullivan, voted no. While Liberal Senators Michaelia Cash, David Fawcett, James McGrath and Zed Seselja, and National Bridget McKenzie, all abstained.

In the House of Representatives, Liberal Russell Broadbent, and Nationals Keith Pitt and David Littleproud, voted no. Whereas Liberals (ex-PM) Tony Abbott, Andrew Hastie, Michael Sukkar, Kevin Andrews, (now-PM) Scott Morrison, Rick Wilson, Stuart Robert and Bert van Manen, and Nationals Barnaby Joyce and George Christensen, all abstained.

After subjecting LGBTI Australians to an unnecessary, wasteful, divisive and harmful postal survey because of their own internal political divisions, the fact that these 24 Liberal and National MPs could not even respect its outcome by voting yes in parliament shows the absolute contempt that they hold for us and our relationships. Their disgusting behaviour should not be forgiven nor forgotten.

**********

These ten points unequivocally demonstrate that same-sex marriage was achieved in Australia in spite of the Liberal Party, not because of them.

So, in the coming weeks, if any Liberal MP or Senator tries to claim credit for achieving marriage equality, tell them to get in the bin.

Because that is where such garbage claims belong.

Former Prime Minister Turnbull on QandA, where he tried to claim credit for marriage equality. Hey Malcolm, Get in the Bin.

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

Footnotes:

[i] Not that I was watching: I was not interested in hearing from the fakest of fake (self-declared) friends of the LGBTI community. This quote is from a transcript in CrikeyWorm.

[ii] Yes, this was done with the support of the then-Latham (!) Opposition, a move that also warrants criticism – but Labor will not be the ones falsely claiming credit for marriage equality in the coming weeks.

[iii] Of course, then-Prime Minister Julia Gillard voted against equality, something for which she should be forever condemned.

[iv] Although trans and gender diverse people are still waiting for forced trans divorce laws to be repealed in some jurisdictions (noting that if they are not repealed by 9 December 2018 the Commonwealth Sex Discrimination Act 1984 will overrule them).

[v] There is a second, more technical, argument why the Liberal Party didn’t actually pass marriage equality. That is because the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was a private members’ bill. It was not Government legislation, so its passage cannot be claimed as an achievement of the Liberal-National Government. Indeed, as a private members’ bill, more ALP MPs and Senators voted for it than Liberal and National ones.

[vi] This includes then-Prime Minister Malcolm Turnbull, who voted for three different sets of amendments increasing discrimination against LGBTI couples, while abstaining on the others.

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Start the new year right, by writing to support the right of LGBT students, teachers and other staff at religious schools to be free from discrimination.

The Senate Standing Committee on Legal and Constitutional Affairs is currently holding an inquiry into Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, and proposed amendments to it.

Full details of this inquiry can be found here.

The most important details are that:

  • This is our opportunity to call for all schools to be made free from discrimination on the basis of sexual orientation and gender identity
  • Submissions close on Monday 21 January 2019 (ie two weeks away) and
  • Once you’ve written yours, it can be uploaded here or emailed to sen@aph.gov.au

**********

If you are looking for some ‘inspiration’ about what to write, here are my suggestions:

  1. Personal stories

If you are, or have been, a student, a family member of a student, or a teacher or other staff member at a religious educational institution (including schools and universities), please share what that experience was like.

This is especially important if you are a lesbian, gay, bisexual, transgender or intersex person, or member of a rainbow family, who has encountered homophobia, biphobia or transphobia at a religious school.

Remember, these examples can range from overt or outright discrimination (such as a student being disciplined, or a teacher being fired or not hired, simply for being LGBT) through to more subtle or insidious forms of mistreatment (being made to feel invisible, having LGBTI content excluded from subjects like health and physical education, or feeling unable to disclose your sexual orientation or gender identity, or information about your partner, to others).

The more stories that we share, the louder our collective voice for change will be.

Importantly, if your submission is deeply personal, you can ask the committee to keep your submission private. From the aph website:

If you do not want your name published on the internet, or if you want your submission to be kept confidential, you should:

  • Include the word confidential clearly on the front of your submission and provide a reason for your request.
  • Make sure that your name and contact details are on a separate page and not in the main part of your submission.

Confidential submissions are only read by members of the committee and the secretariat.

Confidential information may be placed in an attachment to the main part of your submission, with a request for the committee to keep the attachment confidential.

The committee will consider your request but you need to know that the committee has the authority to publish any submission.

The committee will contact you if the committee wants to publish something you have asked to be kept confidential.

If you are considering making a confidential submission, you should contact the committee secretariat to discuss this before you send us your submission.

  1. Call for LGBT students to be protected against discrimination

Whether you have attended or worked at a religious school or not, everyone should call for the ability of religious schools to discriminate against lesbian, gay, bisexual and transgender students to be abolished.

Labor’s Bill achieves this outcome, because it would remove both of the existing exceptions in the Commonwealth Sex Discrimination Act 1984 which allow religious schools to do exactly that.[i]

In your submission, you should ask for the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be passed urgently, so that all students can learn in a safe and inclusive environment.

  1. Call for LGBT teachers to be protected against discrimination

One thing Labor’s Bill does not do is remove the exceptions in the Sex Discrimination Act which allow religious schools to discriminate against LGBT teachers and other staff.

This discrimination is also wrong. Teachers should be judged according to the ability to do their jobs, not whether they are heterosexual and cisgender. The billions of dollars of taxpayers’ money that is provided to religious schools each year should not be used to reject teachers and other staff simply for being LGBT.

Most importantly, in order for the classroom to be a truly safe environment for LGBT children, it must be an inclusive one for LGBT adults too.

Employing LGBT teachers means potentially having role models for kids discovering their own sexual orientations or gender identities. On the other hand, if children see teachers being discriminated against just for being lesbian, gay, bisexual or transgender, they will learn the lesson that their school thinks LGBT people are somehow less worthy than other people.

In your submission, you should ask for the Greens amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be supported. These amendments would remove the exceptions in the Sex Discrimination Act that allow religious schools to discriminate against LGBT teachers and other staff.[ii]

However, you should call for the Parliament to make similar amendments to the Commonwealth Fair Work Act 2009 as well, because that legislation also allows religious schools to adversely treat,[iii] or unfairly dismiss,[iv] teachers because of their sexual orientation.

Finally, you could ask the Parliament to take this opportunity to amend the Fair Work Act to protect transgender and intersex people against adverse treatment and unfair dismissal, because they are currently excluded entirely from these provisions.[v]

  1. Call for the Parliament to reject the Government’s proposed amendments

The Morrison Liberal-National Government has released its own proposed amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.

These amendments would allow religious schools to continue to discriminate against LGBT students in three distinct ways.

First, the Government’s amendments would reinstate one of the two current exceptions that allow religious schools to expel or otherwise mistreat students because of their sexual orientation or gender identity.[vi]

Second, the Government’s amendments would insert an entirely new provision allowing religious schools to discriminate against LGBT students as long as it formed part of ‘teaching activity’ – where teaching activity is incredibly broadly defined as ‘any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’[vii]

Third, the Government’s amendments would change the test for whether indirect discrimination is lawful in three differently-worded alternative ways,[viii] but with all three adding consideration of whether a ‘condition, requirement or practice… imposed, or proposed to be imposed [by a religious school is] in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

The Government’s changes are unnecessary, and would introduce unnecessary complexity into the Sex Discrimination Act. None of the four Australian jurisdictions that already protect LGBT students against discrimination (Queensland, Tasmania, the ACT and the Northern Territory)[ix] include similar provisions in their anti-discrimination laws.

Most importantly, the Morrison Liberal-National Government’s proposed amendments fundamentally undermine the purpose of the legislation, by allowing religious schools to continue to discriminate against LGBT students just under a different name.

You should call for the Parliament to reject all of the Government’s proposed amendments to the Bill.

**********

Every student should be able to learn in a safe and inclusive environment, free from discrimination on the basis of their sexual orientation or gender identity.

Every teacher and staff member should be judged on their ability to perform their role, not according to who they love or how they identify.

Parliament has the opportunity to make both a reality in 2019. But, as with so many law reforms before, they won’t act unless we make them.

So, it’s time to get writing.

Footnotes:

[i] The Bill repeals subsection 38(3) of the Sex Discrimination Act which specifically allows religious schools to discriminate against LGBT students, as well as limiting the general religious exception in subsection 37(1)(d) by adding a new subsection 37(3):

‘Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of education; and

(b) the act or practice is not connected with the employment of persons to provide that education.’

[ii] The Greens amendments repeal subsections 38(1) and 38(2) of the Sex Discrimination Act that specifically allow religious schools to discriminate against LGBT teachers and other staff, and contractors, respectively.

It also amends the proposed new subsection 37(3) so that it removes the ability of religious schools to discriminate both in terms of service provision (ie students) and employment.

[iii] Subsection 351(2) of the Fair Work Act 2009 (Cth).

[iv] Subsection 772(2) of the Fair Work Act 2009 (Cth).

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

[vi] The Government’s amendments remove proposed new subsection 37(3) of the Sex Discrimination Act 1984 (Cth) in Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that limits the operation of the general religious exception in section 37(1)(d) of that Act. Therefore, even if subsection 38(3) is repealed, religious schools would still be able to rely on subsection 37(1)(d) to discriminate against LGBT students.

[vii] The proposed amendment reads as follows:

‘7F Educational institutions established for religious purposes

(1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

(2) In this section:

Teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’

[viii] See amendments KQ 148, KQ 150 and KQ 151, here.

[ix] For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

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12 months ago today, the House of Representatives passed Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017.

It was the culmination of more than 13 years of campaigning by Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.

When that law took effect, two days later, Australia finally permitted same-sex couples to wed and recognised the marriages of most[i] LGBTI couples.

But we did not achieve genuine marriage equality – nor do we enjoy it exactly one year later.

This is because the terms and conditions which apply to the marriages of LGBTI couples after 9 December 2017 are different to those which applied to cisgender heterosexual couples before that date.

First, and most importantly, at the time of writing, forced trans divorce – where a transgender person who is already married cannot gain access to accurate identity documentation unless they first divorce their partner – still exists in Western Australia and Tasmania[ii] (while legislation to abolish forced trans divorce has only passed in the Northern Territory in the past fortnight).

One of the positive aspects of last year’s marriage Bill is that it included a 12-month phase out of exceptions to the Commonwealth Sex Discrimination Act 1984 which allowed states and territories to enforce these discriminatory laws.

Which means that, from this Sunday, trans people who are already married in WA and Tasmania will be able to lodge a complaint with the Australian Human Rights Commission (AHRC) about their mistreatment under the Gender Reassignment Act 2000 (WA) and the Births, Deaths and Marriages Registration Act 1999 (Tas).

Presumably, they will also be able to seek a new birth certificate through this process (although whether the respective state Governments provide one remains to be seen).

Nevertheless, for as long as forced trans divorce sits on the statute books in any Australian jurisdiction, and we compel some trans people who are already married to take action with the AHRC – or even have to go to Federal Court – just to gain access to accurate identity documentation, it is inaccurate to say we have genuine marriage equality in Australia.

Second, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 didn’t just allow LGBTI couples to wed – it also inserted new ‘religious exceptions’ into the Marriage Act 1961 itself. For example, it gave existing civil celebrants the ability to nominate themselves as ‘religious marriage celebrants’ and thereby refuse to perform the ceremonies of same-sex couples.

Importantly, this didn’t just apply to civil celebrants who were ‘ministers of religion’ of unrecognised religions (sub-section 39DD(1), which is at least arguably consistent with freedom of religion).

It also allowed existing civil celebrants to gain access to these special privileges based on nothing more than their personal beliefs. As is now set out in sub-section 39DD(2) of the Marriage Act 1961:

Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs

(2) The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

(a) the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

(b) the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:

(i) in writing; and

(ii) in a form approved by the Registrar; and

(iii) within 90 days after Part 1 of Schedule 1 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and

(c) the choice is based on the person’s religious beliefs [emphasis added].

In effect, a civil celebrant who was registered before 9 December 2017 could simply sign-up to be able to say ‘no gays allowed’ (or no lesbians, bisexuals or transgender people allowed either).[iii]

[Update 13 December 2018: In fact, as revealed by the Ruddock Religious Freedom Review Report, 406 existing civil celebrants registered to take advantage of these new special privileges to discriminate against LGBTI couples. Which, to be honest, is even more people choosing prejudice over equal love than I had anticipated.]

Remember that these celebrants are not ministers of religion, and the ceremonies they officiate need not be religious. There is also no test of their beliefs – it is based solely on self-declaration.

In practice, this provision has very little to do with actual religious freedom, but instead provides new legal protections to homophobia, biphobia and transphobia as long as it is dressed up as ‘religious’.

That much is made abundantly clear by the fact similar provisions had never been introduced to ‘protect’ civil celebrants who wanted to refuse to (re-)marry people who had previously been divorced, or to reject ceremonies for couples of different faiths – both of which arouse strong religious beliefs for many people.

These provisions were introduced only when LGBTI couples were finally allowed to marry, demonstrating that they are not aimed at protecting genuine religious freedom at all – their real target is undermining LGBTI equality.

This is obviously a terrible provision in and of itself. It also sets a negative precedent for other laws.

After all, if civil celebrants – who are in reality a small business, offering commercial services to the public at large – are allowed to discriminate against their customers on the basis of the customer’s sexual orientation or gender identity, then why shouldn’t other businesses be allowed to do the same (a point that religious fundamentalists made frequently during the Ruddock Religious Freedom Review).

Indeed, that brings me to the third reason why we still don’t have genuine marriage equality in Australia.

Amidst all of the celebrations of the passage of same-sex marriage (and yes, as someone engaged to be married, I still think some celebration was justified), I wonder how many people understand that the following is now written into the Marriage Act:

47B Bodies established for religious purposes may refuse to make facilities available or provide goods or services

(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

(2) Subsection (1) applies to facilities made available, and goods or services provided, whether for payment or not.

(3) This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.

(4) To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

(5) For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage [emphasis in original].

This is an incredibly broad exception, applying to anything provided by a religious organisation that has anything to do with a LGBTI wedding – even where it is provided by a service that advertises to the public at large and is run for profit.

The most generous interpretation of the inclusion of this amendment is that it merely replicates, and reinforces, the existing religious exceptions found in section 37(1)(d) of the Sex Discrimination Act 1984 (provisions which have come under scrutiny this week because they also allow discrimination by religious schools against LGBT students and teachers).

But, if that is the case, their inclusion in the Marriage Act is entirely unnecessary. And for a reform that has powerful symbolic value, what does it say about the passage of same-sex marriage that it was accompanied by these equally symbolic, but discriminatory, amendments.

On the other hand, it is arguable that the addition of section 47B has actually increased the range of circumstances in which religious organisations can discriminate against people on the basis of their sexual orientation or gender identity.

This is particularly the case in relation to Tasmania, where the Anti-Discrimination Act 1998 remains the best practice LGBTI discrimination law in Australia.

This is because the religious exceptions in section 47B of the Marriage Act 1961 are framed in a positive way (‘a body established for religious purposes may refuse…’), whereas the existing Sex Discrimination Act 1984 exceptions are phrased in a negative way (‘Nothing in Division 1 or 2 affects…’).

This is an important distinction because it is more likely that a positively-framed religious exception will override the anti-discrimination laws of jurisdictions which are inconsistent. In practice, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 has likely allowed new forms of discrimination in our most Southern state.

Even if that interpretation is incorrect, it should again be highlighted that this type of exclusionary provision was never needed to allow religious organisations to refuse to serve couples where one or both had previously been divorced, or where the couple had different religious backgrounds.

Section 47B was only introduced when LGBTI couples were allowed to walk down the aisle. It’s true purpose is to allow religious bodies – even where they are advertise to the public at large and are run for a profit – to tell same-sex couples to go somewhere else.[iv]

Perhaps the most disappointing part about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is that, despite being one of the worst marriage amendment Bills ever introduced into Commonwealth Parliament,[v] it was signed-off on by Australian Marriage Equality (AME), and the Equality Campaign, supposedly on behalf of the LGBTI community.

In the days after the announcement of the postal survey results, they presented Senator Dean Smith’s Bill as a fait accompli, arguing for its passage without calling for the removal of its unnecessary provisions regarding existing civil celebrants or wedding-related services, effectively making them accomplices to this new discrimination.

In my opinion, AME/The Equality Campaign were wrong to do so.

They were wrong on principle. As an organisation purporting to advocate for marriage equality, they should have been calling for genuine equality, not defending the inclusion of provisions that were never needed for anyone else, but were only introduced to target LGBTI Australians. Their acquiescence makes it harder to push for the removal of these provisions in the future.

They were wrong on strategy. The religious fundamentalists inside the Coalition Government were the ones who had pushed for the unnecessary, wasteful, harmful and divisive postal survey – and they lost, with the majority of Australians showing they supported the equal treatment of all couples, irrespective of sexual orientation, gender identity or sex characteristics.

That is what the LGBTI community should have been demanding: full equality and nothing less. If the Coalition Government refused to pass it because it did not include new rights to discriminate against LGBTI couples, even after imposing an unprecedented $80.5 million three-month national opinion poll, then they would have experienced the biggest of backlashes. It was not up to the LGBTI community to save the Government from itself.

And they were wrong on process, because they never secured the informed consent of the LGBTI community to these changes. They never explained, in detail, what had been given up and why, and they never asked lesbian, gay, bisexual, transgender and intersex (LGBTI) people whether it was a price they were prepared to pay.

Indeed, when other organisations like just.equal and PFLAG Australia did ask the community what they thought, the response was generally unequivocal – there must be no new discrimination.[vi] In the absence of other evidence, that is the position I think AME/The Equality Campaign should have adopted.[vii]

It is likely I will be criticised, possibly quite strongly, for writing this (and especially those last few paras). Many will argue that what’s done is done, and should therefore be left alone.

Maybe.

Except I would argue that what was done last year – the inclusion of new discriminatory provisions in the Marriage Act itself – needs to be undone.

In order to do so, we need to know what exactly is in the Act, and how and why it was included. And then we need to work out a strategy for ensuring sections 39DD(2) and 47B are removed from the statute books so that the stain of discrimination is washed clean, permanently.

And of course we need to support the efforts of groups like Transforming Tasmania and Transfolk of WA so that they are successful in finally ending forced trans divorce in Tasmania and Western Australia too.

Because for as long as any law requires people to divorce their partner in order to obtain accurate identity documentation, while any LGBTI couple is turned away by a homophobic or transphobic civil celebrant (calling themselves a ‘religious marriage celebrant’), and for as long as religious organisations enjoy special privileges to discriminate in the provision of wedding-related goods, services or facilities, then we don’t enjoy genuine marriage equality in Australia.

The moment Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It introduced same-sex marriage. But it isn’t marriage equality.

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

Footnotes:

[i] See the discussion of forced trans divorce below.

[ii] Legislation to abolish forced trans divorce – as well as making the inclusion of gender on birth certificates optional – has passed Tasmania’s Legislative Assembly, but it is unclear if or when it will pass the Legislative Council. Legislation to abolish forced trans divorce has also passed Western Australia’s lower house, but the Legislative Council there does not sit again until 12 February 2019.

[iii] Authorised under section 47A:

Religious marriage celebrants may refuse to solemnise marriages

(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage

Grounds for refusal not limited by this section

(2) This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

[iv] There is a fourth problem with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and that is it reinforces the ability of defence force chaplains to discriminate in terms of which marriage ceremonies they will officiate. As outlined in section 81 of the Marriage Act 1961:

(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body of religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.

Grounds for refusal not limited by this section

(3) This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.

This provision is offensive because military chaplains are public servants, paid for by the taxpayer (including of course LGBTI taxpayers), and obligated to serve all of the people supposedly under their pastoral care. They should be required to provide these services to all ADF personnel, irrespective of their sexual orientation or gender identity – and if they cannot, they should find another job.

On the other hand, it should be acknowledged that defence force chaplains already had the ability to determine who they performed marriages for (although the revised section 81 made this power even clearer) meaning it is somewhat distinct from the existing civil celebrant, and wedding-related services, religious exceptions, both of which are genuinely new ‘rights’ to discriminate.

[v] Perhaps equal worst with Liberal Democrat Senator David Leyonhjelm’s Freedom to Marry Bill 2014, which allowed all civil celebrants to turn away LGBTI couples, but which did not insert new general religious exceptions in the Marriage Act itself.

Liberal Senator James Paterson’s Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 – written in conjunction with the Australian Christian Lobby – was obviously far worse than both, but it was never formally introduced.

[vi] See the results of their November 2017 community survey here.

In particular:

  • 63.1% of respondents opposed the Smith Bill’s civil celebrant provisions
  • 86.9% opposed the wedding-related services exceptions, and
  • 77.4% opposed provisions allowing military chaplains to refuse to officiate the ceremonies of LGBTI ADF personnel.

Importantly, 53.7% of respondents indicated they were willing to wait until marriage equality could be achieved without such provisions (while only 27.9% were not willing to wait and 18.4% were neutral on this issue).

[vii] For more on these issues, see Rodney Croome’s excellent recent article in New Matilda, ‘Yes Yes No: Why the History of Marriage Equality Must be Told Accurately’.

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NSW Legislative Council Standing Committee on Social Issues

Wednesday 7 November 2018

To whom it may concern

Submission re Inquiry into gay and transgender hate crimes between 1970 and 2010

Thank you for the opportunity to provide a submission to this important inquiry.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, including for the past six years in New South Wales.

However, this timeframe means I did not live in NSW during the period 1970 to 2010. I consequently do not have a personal experience of anti-LGBTI hate crimes in this jurisdiction during that period.

Nevertheless, I acknowledge and endorse the work of others, both individuals and organisations, who have documented the appallingly high number of gay and trans hate crimes which occurred here over the course of the past four or five decades.

This obviously includes the work of ACON, whose excellent ‘In pursuit of truth and justice’ report is cited in the terms of reference to this inquiry, as well as that of journalist Rick Feneley, whose stories over recent years have finally started to give these crimes the attention, and scrutiny, they deserve.

And it includes the work of three former NSW Police employees or consultants – Steve Page, Sue Thompson and Duncan McNab – whose work has confirmed the failure by NSW Police to adequately investigate many of these same crimes.

This failure can be seen as one reason, perhaps even the primary reason, why, of the 88 homicide cases identified in In pursuit of truth and justice, approximately 30 remain unsolved today.

I therefore welcome the initiative of the Legislative Council in establishing this inquiry, to hear from people who have been affected by these hate crimes, either directly or who have valuable information about crimes committed against others.

Indeed, this fits with ACON’s recommendation 1.2:

ACON recommends the NSW Government, in partnership with community, undertake a process to comprehensively explore, understand and document the extent of historical violence experienced by the LGBTI community.

And also with recommendation 4.1:

ACON recommends an independent investigation into the actions of the various arms of the criminal justice system to fully understand the impediments to justice during this period in history, their relevance to current practices, and to identify opportunities to finalise unsolved cases.

However, I would argue that, while a positive start, a short parliamentary inquiry is unlikely to be sufficient in and of itself to comprehensively address these issues. I form this view on the basis of the following factors:

  • The sheer scale, and seriousness, of the subject matter involved, noting that we are discussing at least 88 homicides, with more that may yet be identified through this process,
  • Remembering that figure does not include the hundreds, perhaps thousands, of additional homophobic and transphobic hate crimes that occurred during this period, including serious and violent assaults, many of which have never been properly documented,
  • The role of NSW Police in failing to adequately investigate many of these crimes (both homicides and assaults), and
  • The allegations of complicity and/or even direct participation by NSW Police members in some of these horrific crimes.

Given all of the above, I believe that this subject matter should be investigated through a Royal Commission, which would have the appropriate powers, resources and timeframes to fully explore the gay and trans hate crimes which occurred in NSW over the past half-century.

Recommendation 1: That the Committee call on the NSW Government to establish a Royal Commission into the issue of gay and trans hate crimes in NSW since 1970.

In terms of the ‘gay panic’ or ‘homosexual advance defence’ and the role it ‘played in the culture of LGBTIQ hate crimes between 1970 and 2010’ and how it ‘impacted the delivery of justice and the treatment of gay men during LGBTIQ hate crime investigations and court proceedings’, I believe it did contribute both to helping to incite these crimes, and in undermining their proper investigation.

As I wrote to the Legislative Council Provocation Committee in 2012, calling for the abolition of the gay panic defence:

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

 

To have a separate legal standard apply to these cases is homophobic because it implies there is something so abhorrent about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy the same rights as other men, and are accepted as equals by the majority of society.

 

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

 

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

 

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to a non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

 

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

 

The painful ‘lessons’ of the gay panic defence, which were learnt over many decades by the LGBTI community, included the following:

  • That the life of a gay man was valued at less than that of other victims,
  • That a non-violent sexual advance by a gay man to another man was abhorrent, and that a violent response to such an advance was at least partially justified, and
  • That the law enforcement and justice systems of NSW were not on our side.

These same lessons were learnt by the perpetrators of anti-gay and anti-trans hate crimes. They worked out that LGBTI people made for easy targets, both because we were unlikely to report crimes and, even if we did, that NSW Police were unlikely to do anything about it.

Based on the behaviour of some NSW Police officers, including reportedly in the 1989 assault of Alan Rosendale, as witnessed by Paul Simes (see Rick Feneley, ‘Erased from the records; Investigation into bashing of gay man by police in Surry Hills in 1989’, Sydney Morning Herald, 19 January 2015), it seems that they too believed the lives of gay men mattered less than others.

It is perhaps unsurprising that, when the law – via the homosexual advance defence – said gay men’s lives were less valuable than those of heterosexual people, some members of the law enforcement arm of government acted in the same way.

So, while the abolition of the gay panic defence by NSW Parliament in May 2014 was a major step forward for LGBTI rights in this state, we should not underestimate the damage it caused during its (too-many) years of operation.

Thank you in advance for taking this submission into consideration as part of this inquiry. If you would like to clarify any of the above, or for additional information, please do not hesitate to contact me at the details provided.

Sincerely

Alastair Lawrie

ACON’s excellent ‘In pursuit of Truth and Justice’ Report is available here.

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The following is my personal submission to the Law Reform Commission of WA’s Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status. For more information on this inquiry, click here.

**********

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

Friday 19 October 2018

To whom it may concern

Submission in relation to recognition of a person’s sex, change of sex or intersex status

Thank you for the opportunity to provide a submission to this important inquiry.

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

Question 3. Should sex classification be mandatory on birth certificates?

No.

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

Not applicable.

Other comments on the proposed model

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

Other issues

 

I welcome the comments by the Commission, on page 77, that:

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.

Sincerely

Alastair Lawrie

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The NSW Department of Justice has released an Options Paper considering whether to impose ‘mandatory disease testing’ for people whose bodily fluids come into contact with emergency services personnel. You can find more details of that consultation here.

This is my personal submission: 

via mdtsubmissions@justice.nsw.gov.au

Wednesday 31 October 2018

To whom it may concern,

Thank you for the opportunity to provide a submission to this public consultation process.

I write this submission as a former employee in the blood borne virus (BBV)/health sector, and as someone who supports the rights of people living with HIV, hepatitis C and hepatitis B.

I wish to express my serious concerns with any proposal for the mandatory testing of people whose bodily fluids come into contact with emergency services workers, including police.

These concerns are based on a number of factors, including:

The Options Paper places undue emphasis on the number of incidents of exposure to bodily fluids, not the number of transmissions

The table on page 8 outlines the total number of incidents of exposure to bodily fluids per year, including for NSW Police, Corrective Services and Health. These numbers are obviously quite high – especially in relation to NSW Health – however, they are not further categorised by the number of incidents in which the risk of BBV transmission is high, and therefore is inflated by a large proportion of incidents in which the risk of transmission is low or negligible.

Perhaps more importantly, while the paper includes the number of incidents of exposure to bodily fluids, it does not include any information on the number of actual transmissions of HIV, hepatitis C or hepatitis B in these contexts, presumably because these figures are also low or negligible.

For example, I understand that despite the high number of exposures within NSW Health, there have been no confirmed cases of HIV transmission for a health care worker following occupational exposure in NSW since 1994, and nationally since 2002.

I do not wish to underestimate the anxiety that may be experienced by an emergency services worker following an incident of exposure to bodily fluids. However, a focus on the number of incidents of exposure to bodily fluids, while ignoring the very low number of transmissions of BBVs, is likely to exacerbate rather than alleviate such anxiety.

The ‘window period’ means that mandatory testing for BBVs cannot offer the level of comfort that its advocates claim

The push for new laws in this area, introducing mandatory testing for BBVs, by organisations including the Police Association, appears to be motivated by a desire to provide comfort to emergency services personnel who are exposed to bodily fluids in the course of their work.

However, the respective window periods for detection of HIV, hepatitis C and hepatitis B mean that mandatory testing of the ‘source’ person of these fluids cannot offer genuine comfort for these employees. This fact is conceded in the Options Paper itself, on page 13: ‘Because of the window period, it can never be known for certain at the time of testing whether the source person is infectious.’

It is possible to imagine that the results of mandatory testing in these circumstances will instead lead to negative outcomes for the emergency services personnel themselves.

For example, an employee may feel relieved by a negative test of the ‘source’ person, and then, perhaps not fully understanding window periods or simply acting on ‘false confidence’, fail to take appropriate precautions to prevent onwards transmission to their partner, family or others.

On the other hand, a positive test of the ‘source’ person, for one or more BBVs, may lead to heightened anxiety for the emergency services employee, for several months, despite the fact the overall risk of transmission from the particular incident remains low.

Again, this scenario is contemplated in the Options Paper itself, on page 35: ‘even where the source person tests positive, there are varying degrees of risk that the disease will transmit to the emergency services worker. A further consideration is that a positive test result from a source person could have the opposite effect than intended by adding to a worker’s stress, rather than ameliorating it.’

In short, mandatory BBV testing cannot provide what its advocates want. Thus, option 2 – which calls for ‘changes to agency policy to allow the source person to be assessed, counselled and asked to consent to a sample being taken for testing by a health care professional’ – should not be supported.

A better approach would be to focus on providing appropriate health services to emergency services workers

In my view, it would be more effective to ensure that the health services offered to these employees are best practice.

This is contemplated in option 1: ‘improvements to agency policy and practice to ensure emergency services personnel are promptly assessed, counselled and managed by a health care professional with access to specialist advice immediately following an exposure to potentially infectious body fluids.’

This should be supplemented by increased education of emergency services personnel on the routes of BBV transmission, including how to minimise risks of work-related transmission and how to respond to exposure to bodily fluids.

There should also be ongoing programs to ensure all emergency services employees are vaccinated for hepatitis B, that where relevant they have prompt access to Post-Exposure Prophylaxis (PEP) for HIV and immunoglobulin for hepatitis B, and that highly-effective hepatitis C treatments remain available for all Australians who require it.

Mandatory testing undermines Australia’s successful BBV response which is based on consent

Australia has embraced a world-leading response to multiple blood borne viruses, including HIV and more recently hepatitis C.

In both cases, it is based on principles of informed consent and voluntary testing, engagement with affected communities, provision of harm reduction initiatives and the roll-out of treatment across the community.

The introduction of mandatory testing undermines this approach. Indeed, international bodies such as UNAIDS and the World Health Organisation (WHO) oppose mandatory testing because it compromises public health initiatives and efforts to reduce HIV and other BBV transmission.

For these reasons I am strongly opposed to option 3, which is described as ‘a consent-based scheme, with an option for a court ordered mandatory disease testing’.

On page 20, the Options Paper even claims that ‘The advantages of the consent process still apply, and informed consent is the basis for seeking testing. It is anticipated that a sample would be obtained in most cases, as most people would agree to be tested’.

In my opinion, it is highly misleading to state that such a scheme has anything to do with consent. It would more accurately be described as a duress-based scheme, especially because, as outlined on page 19, if the person does not provide ‘consent’ the emergency services agency may then apply to a court for a mandatory disease testing order and:

‘Where the source person does not complywith the court order, the relevant agency may apply to the court for a custody order with warrant. Police may apprehend and detain the source person for the purpose of taking the sample’ (emphasis in original).

This threat negates any consent that may be provided by anyone under this model.

The involvement of police in health-related risk assessments cannot be supported

Option 4 – which is described as ‘a scheme that would apply where an offence has been committed, with mandatory disease testing ordered by a senior police officer’ – has all of the disadvantages of option 3 (above), as well as raising other serious concerns.

The first and most obvious is that police officers are not appropriately qualified to undertake health-related risk assessments. This is again conceded on page 26, which notes: ‘A risk assessment conducted by a senior police officer (or senior correctional officer) offers practical advantages. However, they do not possess the medical expertise offered by health care professionals.’

However, perhaps an even larger problem is created by the criteria that would allow officers to order a test, including the following factor (on page 23):

‘The incident involves a suspected offence or has occurred during the lawful apprehension and detention of a person. For example, the exposure may occur during an assault on the emergency services worker, or while a police officer is arresting a person.’

It should be remembered that a significant proportion of suspected offences are never proven, and that charges in relation to the incident may ultimately be dropped (often several months afterwards). There are also occasions when the lawfulness of the individual’s apprehension and detention are contested, again usually some time later.

However, even if charges are dropped and/or the detention is subsequently found to be unlawful, in the meantime the individual would have already been subjected to an invasive and involuntary medical procedure (or indeed been charged again for failing to provide a sample).

It is even possible to see how, in an incident involving exposure to bodily fluids, such a scheme could operate as an incentive for police to allege an offence has occurred in order to obtain a BBV test from the source person.

This option is therefore not just poor from a health but also a legal perspective.

Mandatory BBV testing creates significant privacy concerns

All of options 2, 3 and 4 generate significant concerns for the privacy of people who undergo BBV testing. This is because the test results are automatically disclosed to the affected emergency services worker.

While it is proposed that safeguards be introduced to ensure the test results are not further disclosed, it is easy to foresee circumstances in which positive results will be disclosed either inadvertently or deliberately during this process.

This is obviously of significant concern for people living HIV, hepatitis C or hepatitis B, who have a right to control their health information, including choosing when, and to whom, they disclose their status.

These concerns are especially acute for people who may be diagnosed as a result of a mandatory BBV test in these circumstances. They will immediately and involuntarily have their status disclosed outside the health context to an emergency services or law enforcement employee, who is most likely a stranger to them and in whom they cannot necessarily place trust not to disclose to others.

This could be an incredibly disempowering experience for the individual concerned and, if health workers are involved in this process (for example, performing the test), could alienate them from the very services they should be accessing for support and (if they so choose) treatment.

It is revealing that the Options Paper discusses, at-length, multiple options in an effort to alleviate the concerns of emergency services workers who are exposed to bodily fluids, despite the fact it is highly unlikely they will ultimately contract a BBV, but spends little to no time discussing the consequences of a positive test result for the ‘source’ person, which is actually the more likely scenario.

This further illustrates that the proposals for mandatory BBV testing are not health- or evidence-based.

Conclusion

 

As outlined above, I have serious concerns about the proposals outlined in the Options Paper, and especially options 2, 3 and 4.

The ‘window periods’ for HIV, hepatitis C and hepatitis B mean there is limited public health benefit from introducing mandatory BBV testing. On the other hand, there are significant risks, including:

  • Undermining principles of informed consent (and therefore compromising Australia’s world-leading BBV responses)
  • Inappropriately involving police in health-related risk assessments and medical procedures, and
  • Creating serious privacy concerns, especially for people diagnosed as a result of mandatory testing.

The preferred approach would be to ensure that emergency services personnel have access to appropriate information and health services, as outlined in option 1 (‘improvements to agency policy and practice to ensure emergency services personnel are promptly assessed, counselled and managed by a health care professional with access to specialist advice immediately following an exposure to potentially infectious body fluids’).

Therefore, while option 1 can be supported, options 2, 3 and 4 should all be rejected.

Please do not hesitate to contact me, at the details provided, should you require further information.

Sincerely,

Alastair Lawrie

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