alastairlawrie.net is a leading Australian LGBTI rights website, with a particular focus on anti-discrimination law and its intersection with 'religious freedom'. Written by a former Policy Chair of both the Victorian and NSW Gay & Lesbian Rights Lobbies, this blog helps shape policy and political debates about lesbian, gay, bisexual, transgender and intersex equality federally and in..
The right to education is one of the most fundamental of all human rights.
This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual’s life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.
The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?
I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).
I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)
Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.
This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.
That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:
As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.
The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.
Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.
Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.
Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.
Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.
Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.
Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.
Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.
These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.
It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.
That includes Prime Minister Scott Morrison’s broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.
This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.
We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.
Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.
Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn’t the case in Australia. It’s something we must change for the sake of LGBT students now, and for the generations yet to come.
All students have an equal right to education, including LGBT students.
It is two weeks on from the Federal election, in which the Liberal-National Coalition was surprisingly (some might say shockingly) re-elected. It was a disappointing result from an LGBTI rights perspective, given Labor had adopted the most progressive major-party platform on LGBTI issues in history.
The Morrison Government’s position on a range of topics that affect our community is a lot less clear. Now that the dust has settled after the May 18 poll, what does the future hold for LGBTI rights in Australia?
The most immediate issue that confronts the lesbian, gay, bisexual, transgender and intersex community is the potential threat of a Religious Discrimination Bill.
I write ‘potential’ because it remains unclear exactly what type of legislation the Government is proposing to implement its commitment arising from the Ruddock Religious Freedom Review.
On one hand, it could be a Religious Anti-Discrimination Bill, which would add religious belief, including lack of belief, as a protected attribute to Commonwealth anti-discrimination law. This would be welcome, given religious minorities in particular should be protected against discrimination simply because of who they are (something LGBTI Australians have much empathy for).
Indeed, that is what was promised by Attorney-General Christian Porter, in his joint press conference with Prime Minister Morrison in December 2018, when they announced the Government’s response to the Ruddock Review:
“The architecture for discrimination legislation is well-known, it’s not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don’t think that that would be a very contentious bill, necessarily, it follows a very standard architecture. But what the Ruddock Report said, is that there is a need for such a bill.
“I would put it to you all this way. In Australia at the moment, if you’re invited to a function at Parliament and at entry to the room of that function, you were denied entry because of the fact that you had a disability or because of your race, or because of your age, or because of your sex, that would be unlawful. But if you were turned away because of your religion, that would not be unlawful in Australia. So this, if you like, is the fifth and final pillar of an overarching architecture that prevents discrimination for Australians, directed to Australians, based on attributes which should never be the basis for discrimination.”
On the other hand, the Government could instead introduce a Religion Pro-Discrimination Bill, which further entrenches the special privileges of religious organisations to discriminate against others, including (but not limited to – see below) LGBTI Australians.
A Religious Pro-Discrimination Bill would present the greatest threat to LGBTI rights in Australia since criminalisation. It is entirely natural for us to feel threatened by this possible development. Indeed, the Government has created the vacuum allowing this fear to arise, given it would not reveal the contents of its proposal before the election (despite Porter saying in December 2018 that: “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”).
And we must do so as a matter of urgency, with Porter indicating that he wants to introduce the legislation – whichever it is – when Parliament resumes in July.
While it is almost certain the Morrison Government will proceed with a Religious Discrimination Bill (of some kind) in the near-term, the future for LGBT students in religious schools is far less clear.
Despite the Prime Minister himself promising to protect LGBT students against discrimination before the end of 2018, he obviously failed to do so. Instead, the day before the election was called, Attorney-General Porter referred the issue of religious exceptions to the Australian Law Reform Commission for review.
At this stage, “[t]he ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.” The final report is due by 10 April 2020 (for more details, see the ALRC website).
The LGBTI community must be heavily involved in this process, to ensure that our interests are appropriately considered at every step. This includes advocating for the full removal of the ability of religious schools to discriminate against LGBT students under the Sex Discrimination Act 1984 (Cth), rather than allowing such discrimination to continue just under a different name. And we must engage politically (see below) to pressure the Government to finally fulfil its commitment to protect LGBT kids.
Unfortunately, the election result makes the removal of similar discrimination against LGBT teachers that much more difficult (although not impossible). Ditto for abolishing the exceptions that allow religious organisations to lawfully discriminate against LGBT Australians in employment generally, and in the provision of services.
But that doesn’t mean we give up. It just means we fight harder. Because LGBTI Australians will not truly be equal until we have the right to learn, the freedom to earn and the ability to access services without fear of discrimination on the basis of our sexual orientation, gender identity or sex characteristics.
As after any election, the personnel in Federal parliament have changed (even if perhaps not as much as many LGBTI Australians would have liked). This means we must adapt the targets of our advocacy regarding the above two issues.
In addition to lobbying (where possible) Prime Minister Morrison and Attorney-General Porter, we should also focus on the growing ‘rainbow’ group within the Liberal Party, with lesbian Angie Bell elected to represent Moncrieff in the House of Representatives, joining Trent Zimmerman, Trevor Evans, Tim Wilson and Senator Dean Smith, plus long-term LGBTI ally Warren Entsch.
The likely composition of the new Senate also means that returning Tasmanian Senator Jacqui Lambie now wields significant power, together with the two Centre Alliance Senators from South Australia, Rex Patrick and Stirling Griff. It is not an exaggeration to say that these three Senators will hold our collective fate in their hands on a large number of Bills.
Finally, following Labor’s election loss, and the election of new Opposition Leader Anthony Albanese, the ALP’s positions on all issues, including LGBTI issues, is now up for grabs. We will need to make sure that they do not back-track on any of the positive positions which they took to the election, including the full removal of discrimination against LGBT students and teachers. In this push, we should also engage with Rainbow Labow MPs, including Penny Wong, Louise Pratt, Julian Hill and the newly-elected Queensland Senator Nita Green.
[I have deliberately not mentioned the Australian Greens here, including bisexual Victorian Senator Janet Rice, because their support on LGBTI issues can usually be relied upon].
Senators Jacqui Lambie, Stirling Griff and Rex Patrick will play a significant role in determining what LGBTI law reforms can be achieved – and whether a Religious Pro-Discrimination Bill can be defeated.
One of the main lessons of the marriage equality campaign was the vital role of allies in achieving progress on LGBTI issues. This is equally important in terms of the push to protect LGBT students and teachers against discrimination and – if necessary – to fight against a Religious Pro-Discrimination Bill.
We have seen that the vast majority of Australians are already onside when it comes to protecting LGBT students against discrimination, with the immense public backlash against these exceptions when the Ruddock Review was leaked in October 2018 (and which prompted Morrison’s promise in the first place).
With regards to protecting LGBT teachers, we must work better together with education unions (including the Australian Education Union, and Independent Education Union). The same applies to building our relationship with the ACTU, and union movement more broadly, to remove all religious exceptions from employment law, including the Fair Work Act 2009 (Cth).
Thinking about the potential Religious Pro-Discrimination Bill, the legislation itself presents us with natural allies – because it is not just LGBTI Australians who would be subjected to discrimination as a result.
A Religious Pro-Discrimination Bill could also increase discrimination against women, especially in relation to their marital or relationship status, and their ability to access reproductive health services. Unmarried/single mothers are at particular risk (alongside divorced people generally). It’s time to build bridges between LGBTI and women’s organisations to respond to this common threat.
Finally, perhaps the most important allies we have in this struggle are good people of faith. We simply cannot afford to let this issue be defined as ‘god versus gays’, especially because the majority of religious people support the equality of their fellow citizens – as demonstrated through the same-sex marriage postal survey.
Instead, our enemies are religious fundamentalist groups, like the ACL and some established churches (the formal organisations – not the followers), and any individuals who are acting in bad faith to impose their religious beliefs on others, including demanding the ability to lawfully discriminate against LGBTI people. They are who we are fighting against, not ordinary Australians.
This means that throughout this debate, no matter how ugly it may become, we should strive to be respectful of people’s faith, or lack of faith, in the same way we are fighting for the right to be treated fairly, with decency and respect (some might even say at this point ‘Do unto others…’).
It may seem strange, given the current political environment in which we are operating and the threat of a Religious Pro-Discrimination Bill, to talk about opportunities for progress on LGBTI rights but there are several.
The first is for action to (finally) be taken to stop coercive and invasive surgeries and other medical interventions on intersex children. These human rights violations continue unabated, despite a bipartisan 2013 Senate Inquiry recommending that such surgeries and/or treatments be stopped.
In 2017-18, the Australian Human Rights Commission initiated a new project focusing on ‘Protecting the human rights of people born with variations in sex characteristics in the context of medical interventions’, with a final report expected shortly.
This will be an opportunity for non-intersex LGBT individuals and for LGBT/I organisations to support the work of groups like Intersex Human Rights Australia and their campaign to end these practices once and for all (noting that there is no right-wing, or left-wing, justification for such interventions, so there is no political rationale for the Government not to intervene).
The second opportunity is on ex-gay or ex-trans therapy, with the Morrison Liberal-National Government providing the following response to Equality Australia’s pre-election survey:
“As the Prime Minister has said, the Morrison Government does not support LGBTIQ+ conversion therapy. The use of conversion therapy has long been discredited with no scientific or medical evidence to support its use.
“The Morrison Government remains committed to addressing the mental health of all Australians, including the LGBTI community, and this also relates to opposition to gay conversion therapy. The Government will work with the states, which have legal responsibility in this area, to ensure such practices are not supported or occurring” [emphasis added].
We should take them at their word and seek to make urgent progress to end this psychological torture.
The other main opportunities lie at state and territory level. This includes the ongoing campaign to provide trans and gender diverse people with better access to appropriate identity documentation.
With Tasmania recently passing best practice laws that allow individuals to update their birth certificate on the basis of self-identification – without the need for surgery, other treatment or medical approval – we must pressure the seven other jurisdictions to quickly follow suit.
It also includes working towards reform of state and territory anti-discrimination laws. Because, while the Sex Discrimination Act 1984 allows discrimination against LGBT students and teachers under Commonwealth law, some states and territories have adopted preferable provisions.
For example, last year the ACT amended its Discrimination Act 1991 to protect both LGBT students and teachers in religious schools against discrimination. Queensland and the Northern Territory already protected LGBT students against discrimination, while once again Tasmania has best practice laws in this area (their Anti-Discrimination Act 1998 only allows religious organisations to discriminate on the basis of religious belief, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics).
Given the vulnerability of LGBT kids in particular, there is no reason why we should not pressure state and territory governments to amend their own laws, even before the ALRC completes its report.
I have written about the threats we potentially face, as well as some of the uncertainty that now confronts us. But there is one thing that is absolutely sure: nothing will get better unless we act to make it better.
The Government won’t make changes on our behalf out of the kindness of its heart. Just like with countless LGBTI law reforms in the past, the only way to improve our situation – especially for vulnerable members of our community – is to get involved and collectively force them to do it.
This will be especially important if the Morrison Government decides to introduce a Religious Pro-Discrimination Bill. We will need all hands on deck, including people who (completely understandably) needed to take time away after the horrific experience that was the same-sex marriage postal survey.
And so I would conclude by encouraging you to join one or more of the many LGBTI advocacy organisations that will be fighting on our behalf in the coming months and years. This includes:
Finally, I will continue writing regular articles about the campaign to protect LGBT students and teachers in religious schools against discrimination, as well as key developments surrounding the Religious Anti- or Pro-Discrimination Bill. To receive these posts direct to your email, please sign up via the right-hand scroll bar on the desktop version of this blog, or near the bottom of the page on mobile. Thanks.
This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.
Today we celebrate the International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (variously abbreviated as IDAHO, IDAHOT, IDAHOTB or IDAHOBIT).
In Australia, we do a relatively good job of focusing on what the day means in terms of the challenges that remain in order to achieve lesbian, gay, bisexual, transgender and intersex (LGBTI) rights – domestically anyway.
However, we are much less successful in remembering the first word in the day’s title, and highlighting the even greater barriers left in addressing and overcoming homophobia, biphobia, transphobia and intersexphobia globally.
As of March 2019, there are 70 Member States (35%) that criminalise consensual same-sex sexual acts: 68 of them have laws that explicitly criminalise consensual same-sex sexual acts and 2 more criminalise such acts de facto. In addition, other jurisdictions which are not UN Member States also criminalise such acts (Gaza, the Cook Islands and certain provinces in Indonesia).
A significant number of these countries are within our region. In Oceania, that includes:
Maximum Penalty for Homosexuality
14 years imprisonment
14 years imprisonment
Papua New Guinea
14 years imprisonment
5 years imprisonment
14 years imprisonment
10 years imprisonment
14 years imprisonment
There are a number of other countries that criminalise same-sex sexual activity in South-East Asia, too:
Maximum Penalty for Homosexuality
10 years imprisonment
20 years imprisonment
10 years imprisonment
2 years imprisonment
*As well as some provinces within Indonesia, including Aceh.
And Australia has another important connection with a large number of countries that still criminalise homosexuality around the world, with half being members of the Commonwealth (including more than half of countries within the Commonwealth itself).
Therefore, while Australia might have fully decriminalised homosexuality in 2016 (when Queensland finally equalised the age of consent for anal intercourse), there is still a long way to go on this issue internationally.
Of course, there is even further to go – both domestically and internationally – for trans and gender diverse people to have the right for their identity documentation to reflect their gender identity based on self-declaration, and to be able to live their lives free from discrimination, violence and in some countries criminalisation. For more, see ILGA’s 2017 Trans Legal Mapping Report.
And, as on so many issues, progress on intersex rights has lagged even further behind, with very few countries following Malta’s 2015 lead in banning coercive surgeries and other involuntary medical treatments on intersex people. That includes Australia, too, with governments at all levels failing to implement the recommendations of the 2013 Senate Inquiry on this subject in the intervening six years. [Unfortunately, I am note aware of an equivalent State-Sponsored Intersexphobia/Intersex Legal Mapping Report].
Thankfully, it’s not all bad news. There has been some significant progress in recent years on at least some of these issues, not least of which was the historic September 2018 decision by the Supreme Court of India to declare section 377 of the Indian Penal Code unconstitutional, thereby legalising homosexuality in the second most-populous country on earth.
That case, after years of amazing advocacy by Indian activists, helps make the following graph look much more encouraging:
Nevertheless, there are still far too many countries where people are not free to love who they love, not able to identify with their gender and be protected against discrimination, violence and criminalisation, and not subject to coercive surgeries and other involuntary medical treatments because of their sex characteristics.
So, what can Australia do? There are a range of ways in which Australia can better support progress on LGBTI rights internationally, including the following:
Support decriminalisation as a key priority of foreign policy
Australia should support decriminalisation for all LGBTI people around the world as a key human rights objective of our foreign policy. This should include a primary focus on decriminalisation within our region, as well as within the Commonwealth.
Unfortunately, the most recent Foreign Policy White Paper makes exactly zero references to supporting LGBTI human rights (despite my submission calling for their inclusion).
Of course, achieving this goal depends on partnership with communities within these countries, not only because they are best placed to know how to advocate for decriminalisation, but also because Australia acting unilaterally would risk entrenching anti-LGBTI policies and laws.
Support LGBTI rights through international human rights architecture
This includes using our current term on the United Nations Human Rights Council to prioritise LGBTI rights, as well as actively supporting the reappointment of the UN Independent Expert on Sexual Orientation and Gender Identity. And it also includes regularly raising LGBTI rights issues within the Commonwealth Heads of Government framework (with the next CHOGM meeting in Rwanda next year).
Australia could also consider appointing an Ambassador for LGBTI Rights in the same way that we have appointed an Ambassador for Women and Girls.
Support LGBTI rights through foreign aid
Another way in which Australia can better support LGBTI rights internationally is by supporting LGBTI human rights through our foreign aid policies (and of course by ensuring our foreign aid Budget is increased overall, after a series of mean-spirited and unjustified cuts under the Liberal-National Government have reduced it to 0.19-0.21% of GDP, far short of the UN target of 0.70% and far short of our capacity, and responsibility, as one of the richest countries on the planet).
This could include funding for international LGBTI associations, such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), OutRight International and Kaleidoscope Trust, as well as other human rights organisations that include a focus on LGBTI rights (such as Human Rights Watch). It also means actively supporting the Commonwealth Equality Network, and LGBTI organisations working towards decriminalisation within our region.
Accept LGBTI refugees and people seeking asylum
We should acknowledge that, while the aim is to ensure lesbian, gay, bisexual, transgender and intersex people are safe everywhere, this is not currently the case and will not be possible in some places for some time. Australia should therefore ensure its refugee framework helps to protect LGBTI people fleeing persecution, including through appropriate assessment processes, and providing improved support services post-resettlement. Oh, and that obviously means not detaining, processing and settling LGBTI refugees offshore, including in countries that criminalise them (for more, see Australia’s (Mis)Treatment of LGBTI Refugees).
Set a better example on LGBTI rights domestically
Australia’s ongoing (mis)treatment of refugees, including LGBTI people seeking asylum, raises another key challenge – in order to better support human rights internationally, we must be seen to respect human rights domestically. That is obviously not currently occurring when it comes to our refugee policy.
It is also not the case in terms of our own treatment of trans and gender diverse people. We must make sure all states and territories follow Tasmania’s recent lead in guaranteeing access to identity documentation on the basis of identity not surgery. And we must finally make long overdue progress on intersex human rights, including protecting the bodily autonomy and integrity of intersex children against coercive surgeries and other involuntary medical treatments.
As we commemorate International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (IDAHOBIT) today, we should by all means celebrate how far we have come within Australia, as well as highlighting those challenges that remain domestically. But we must not forget the ‘International’ focus of the day, and the important role Australia can play in making progress on LGBTI rights everywhere, for everyone.
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This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.
Of all the issues that involve human rights violations against lesbian, gay, bisexual, transgender and intersex people in Australia there are two that particularly stand out (at least in my view).
One – ongoing coercive medical treatments and surgeries on children born with intersex variations – I have written about previously.
The other is the deliberate mistreatment of LGBTI refugees and people seeking asylum by the Australian Government.
Of course, this abuse is only one small part of Australia’s broader shameful approach to refugee issues, but, as we shall see below, it does raise specific issues around where people are processed and how claims are assessed.
The following are three key areas where the Australian Government’s approach to LGBTI refugees and people seeking asylum should urgently be improved, as well as one suggestion for further consideration.
End the detention, processing and settlement of LGBTI refugees in countries that criminalise homosexuality
To begin, I should reiterate my personal opposition to Australia’s overall ‘offshore processing’ policy, which essentially involves the indefinite detention of refugees in prisons in the South Pacific. There is no justification for this approach.
There can also be no possible justification for the detention, processing and settlement of LGBTI refugees and people seeking asylum in countries that criminalise homosexuality. And yet that is exactly what Australia has done for the past seven years.
This includes Nauru, where homosexuality remained criminalised until May 2016,[i] and Manus Island in Papua New Guinea, a country where the maximum penalty for male same-sex intercourse is still 14 years imprisonment.
There is no exception for people held in Australia’s immigration detention facilities in these countries either. This is demonstrated by the following report from Behrouz Boochani in The Guardian:
It was five years ago in Fox prison camp. A group of immigration officers accompanied by a number of interpreters burst in. All of a sudden, one of the officers stood on a chair precisely like a king’s representative in ancient times, like one of those men reading the king’s announcement for convicts. The officer took a piece of paper, and surrounded by dozens of refugees he started to read. The announcement was serious, decisive, to the point and threatening, like his voice. “Homosexuality is illegal in Papua New Guiana [sic] and considered as a crime. If anyone in the immigration detention engages in this behaviour, he will be sentenced to 14 years in prison.” It was a dire warning from the prison’s officials and directly targeted homosexual prisoners.
The article then details the horrendous impact of these laws on Alex* (pseudonym), a gay Iranian refugee imprisoned on Manus Island, who was gradually but inevitably broken by the homophobic environment there, through intimidation, harassment, abuse and even rape. His experiences ultimately led him to risk his life again by returning to Iran, before seeking asylum elsewhere – and served as a cautionary tale to other queer men on the island. As Boochani concluded:
No one knows how many gay, transgender or bisexual refugees live on Manus, but what is clear is that the suffering they experienced in their countries has been repeated on Manus in a disastrous way. Fear, humiliation, threat, banishment, rape – these are all concepts and experiences lived daily by these men. Gay, transgender and bisexual men here have experienced even greater torment than other refugees. [emphasis added]
Successive Australian Governments have been fully aware of these abuses. I know, because I have written about this issue to multiple Immigration Ministers,[ii] including then Minister – now Prime Minister – Scott Morrison in 2014. His Department’s response failed to even guarantee that LGBTI asylum seekers would not be reported to PNG police for same-sex sexual activity.
Given his ‘tough on border security’ rhetoric, there appears little hope that a re-elected Morrison Liberal-National Government would take any action to address these human rights violations.
On the other hand, there is some chance that a Shorten Labor Government might finally take a different approach. This is at least in part due to a commitment in the 2018 Australian Labor Party National Platform that:
Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.[iii]
Consequently, there is a possibility the situation may change, along with the Government, on Saturday 18 May – although that will only happen if LGBTI and refugee advocates maintain pressure on Labor to fulfil this commitment.
The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).
Improve the assessment process for LGBTI claims for asylum
This is another major problem confronting lesbian, gay, bisexual, transgender and intersex refugees and people seeking asylum in Australia, one that has existed for many years, even decades.
Practically, the decision-makers of the Refugee and Migration Division of the Administrative Appeals Tribunal (known until 2015 as the Refugee Review Tribunal) have struggled to appropriately consider the diversity of sexual orientations and gender identities from other countries, leading to a very low rate of success in receiving refugee protection (a 2003 study by Professor Jenni Millbank showed that at most only 20% of claims were approved).
Tribunal officials have long been accused of judging applicants based on a slew of Western gay stereotypes, such as effeminate manner or dress. In one notorious case, an applicant was deemed not gay after failing questions about Madonna, Better Midler, Oscar Wilde and Greco-Roman wrestling. The man barely spoke English and was mystified by the topics. “I don’t understand it,” he said to his interviewer. “I’m sorry.”
When in 2004 his case came before the High Court on appeal (after the Federal Court had first ruled against the applicant), the justices were staggered by the line of questioning used by the Tribunal, describing it as very odd, and almost bordering on the bizarre. “Madonna, Better Midler and so on are phenomena of Western culture,” declared Justice Michael Kirby at the time. “In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is.”
Unfortunately, more recent cases do not indicate that this inherent Western-gay bias has been overcome. The SMH further reported that:
Last year , a man from Bangladesh was rejected in part because he was unable to correctly pronounce or spell the name of a Sydney gay club he’d visited called the Stonewall, according to Tribunal documents – which incorrectly referred to the nightclub as a “day venue”. In a similar 2014 case, an asylum seeker was told he wasn’t gay because, although he described having two monogamous relationships, he hadn’t “explored his homosexuality” by going to Sydney’s gay bars, and had little knowledge of Oxford Street.
There are additional reports of Tribunal members asking inappropriately sexual questions, as well as applicants being encouraged to supply video of themselves engaging in sexual activity in an attempt to ‘prove’ their homosexuality to the Tribunal. This occurs because, as the SMH notes, “there are no guidelines for dealing with LGBTQI applicants.”
This situation must change, as a matter of priority. Unfortunately, there is no indication that a re-elected Morrison Liberal-National Government will take action to address these problems.
Once again, however, these is some reason to be optimistic about a Shorten Labor Government, which includes these commitments in its Platform:
The assessment and review of protection claims of specific lesbian, gay, bisexual, transgender, intersex and queer asylum seekers will be underpinned by appropriate and relevant assessment tools and processes that reflect cultural experiences of the lesbian, gay, bisexual, transgender, intersex and queer community.
In assessing asylum claims where the fear of persecution arises from a person’s lesbian, gay, bisexual, transgender, intersex and queer status, the fact that the country the person is fleeing has criminal penalties for engaging in homosexual sex is sufficient of itself to establish that fear of persecution is well-founded, and any assessment of the asylum seeker’s identity and fear must take account of the very different manifestations of lesbian, gay, bisexual, transgender, intersex and queer identity that other cultures, especially ones profoundly hostile to lesbian, gay, bisexual, transgender, intersex and queer people, necessarily engender.
Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.
As with ending detention of LGBTI refugees in countries criminalising homosexuality however, the challenge will be in ensuring that a new Government follows through on its promises.
Increase support for LGBTI refugees and people seeking asylum in Australia
Another area where urgent reform is needed is the level of support provided to lesbian, gay, bisexual, transgender and intersex refugees within Australia.
The few dedicated support services that exist receive minimal funding, and consequently are unable to meet the significant needs of this vulnerable population.
Particular challenges include the fact that LGBTI refugees and people seeking asylum may not be comfortable in disclosing their sexual orientation, gender identity or sex characteristics to services based on their ethnicity or background, but at the same time may not be welcomed by or receive adequate support from LGBTI services.
LGBTI asylum seekers can also find themselves caught between lack of acceptance from diaspora communities and lack of understanding from mainstream LGBTI communities.
First and foremost, these gaps should be addressed by providing direct Government funding for peer-led LGBTI refugee services. However, this alone may not be sufficient to ensure LGBTI refugees and people seeking asylum are able to access the full breadth of services they may require.
Therefore, there should also be funding to support education and training programs for ethnic community organisations to assist them to be welcoming environments for LGBTI refugees (as well as inclusiveness training for interpreters, who have a key role to play not just in supporting LGBTI people seeking asylum to access services, but also in their claims for protection).
There is also a need for LGBTI community organisations to provide greater social support and outreach to LGBTI refugees and people seeking asylum in Australia. This would help to establish connections between LGBTI refugees and the wider LGBTI community, and may result in better social outcomes over the medium- to long-term.
While the above three issues are presented as concrete recommendations for change, the following suggestion is raised to prompt further discussion:
Introduce quotas or targets for the intake of LGBTI refugees
I should preface this discussion by saying that, philosophically, I don’t support the introduction of quotas or targets within Australia’s overall refugee program based on demographic criteria. Instead, Australia should accept refugees based on the assessment of need by the UN Refugee Agency (the UNHCR).
However, that is not how the Australian refugee framework currently operates.
Indeed, it seems the Morrison Liberal-National Government wants to introduce even greater demographic criteria within the refugee program.
During the election campaign, it has announced ‘the proposed makeup of the humanitarian program for the first time. This will include an overall target of 60% of the offshore component allocated to women. Women made up 50.8% in 2017-18.’[iv] [emphasis added]
In this context, the obvious question is: if Christians and women receive allocated quotas (or targets), then why not lesbian, gay, bisexual, transgender and intersex refugees?
Indeed, there are strong arguments in favour of this approach.
A significant number of LGBTI refugees are therefore unsafe and at risk even after they have fled persecution elsewhere.
There are also a number of countries in our own Oceania region that criminalise homosexuality, including PNG, Kiribati, Solomon Islands, Tuvalu and Cook Islands (all of which have a maximum penalty of 14 years imprisonment), Tonga (10 years imprisonment) and Samoa (5 years imprisonment). And that’s not mentioning the recent attempt by the Government of Brunei to introduce the death penalty (which they have backed down from – for now – but retain a punishment of imprisonment up to 10 years).
As stated earlier, my personal preference is that there are no demographic criteria for determining the intake of refugees. But, if Australia’s current approach, which gives priority to Christians and women, does continue, I can see no good reason why there should not also be quotas or targets for the intake of refugees who are lesbian, gay, bisexual, transgender and intersex.
Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.
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
[i] Of course, just because homosexuality has been decriminalized in Nauru doesn’t necessarily mean it is now a welcoming environment for LGBTI refugees and people seeking asylum. This is confirmed by the following accounts, including:
This article is part of a series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia. You can see the rest here.
One of the biggest challenges facing members of the LGBTI community – albeit one that has traditionally not received significant attention – is the prohibitive cost involved for trans and gender diverse people in accessing medical treatments related to their gender identity, including (if they wish to) transition.
These expenses can mean the difference between being able to affirm one’s gender identity or not, and are so high that they effectively push some trans people into poverty.
‘There’s a massive price tag on being transgender in Australia. For some, the cost of surgery and treatment for gender dysphoria will crack $100,000.
‘The ABC… has been following one woman’s effort to find the money she needs to transition, while living below the poverty line. Stand-up comedy has been Cassie Workman’s main income for the past seven or eight years.
‘Normally, it’s just enough cash to scrape by, but recently she’s also been diverting as much as she can towards an estimated $85,000 in medical, administrative and incidental costs associated with her transition to a woman.’
The issue of trans out-of-pocket medical costs was also included in this excellent March 2019 The Conversation article on LGBTI policy priorities by Liam Elphick:
‘Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.
‘As transgender advocate and lawyer Dale Sheridan tole me: “While an approximate 10% Medicare rebate is provided for genital surgery, the treatment undertaken for most transgender and gender-diverse people is far in excess of this. For example, I have spent over $15,000 on four years of electrolysis to remove my facial hair, and there is no rebate available because this is considered cosmetic. However, having a beard does not match my female appearance and has caused much dysphoria.”’
‘For medical services to be covered by the public health system in Australia, they must be medically necessary, clinically effective and cost effective. For many trans and gender diverse people, the ability to alter their body is part of affirming their gender and can be an important treatment if they are experiencing distress or unease from being misgendered and/or feeling incongruence between their gender identity and their body.
‘Research has demonstrated that access to gender-affirming care has led to reduced mental health risks and improved quality of life for trans and gender diverse people.’
These reasons – better mental health and quality of life outcomes – are important reasons why trans out-of-pocket medical costs must be reduced (or better-still, eliminated). But there is an even more fundamental argument: people have a human right to live their affirmed gender identity, and that right is just as important as health, education and housing.
ACON’s Blueprint, the development of which was driven by the trans and gender diverse community of NSW, contains six priority areas, with the first two most directly related to the issue of medical expenses:
Priority A: Clear and easy pathways for accessing gender-affirming care [and]
Priority B: Affordable and available gender-affirming healthcare.[i]
Combined, these two priorities include seven recommendations – called ‘solutions’ – to address these issues:
A1: Develop plain-language resources on trans and gender diverse health and human rights and establish a peer worker program to support trans and gender diverse people in navigating the health system, including when seeking gender-affirming care.
A2: Provide ongoing GP training, information and support so trans and gender diverse people can access gender-affirming hormone therapy through primary healthcare, using an informed consent model, and gender-affirmation treatment plans that are based on the individual needs of the patient.
A3: Increase the availability of specialists who are inclusive and have expertise in gender-affirming care, for those who may need specialist care in affirming their gender.
B2: Cover gender-affirming healthcare as medically necessary services under Medicare and the PBS.
B2: Provide an exemption for trans men and non-binary people assigned female at birth from the 2015 Pharmaceutical Benefits Advisory Committee (PBAC) restrictions on how testosterone is prescribed under the PBS.
B3: Amend the NSW Health Waiting Time and Elective Surgery Policy to remove ‘gender reassignment surgery’ as a discretionary procedure and conduct a review to ensure that all gender-affirming surgeries are included within one of the 3 clinical urgency categories.
B4: Remove gendered categories in health services or programs, such as Medicare billing codes, where there is no clinical need for them.
This document is a clear pathway forward to providing accessible and affordable healthcare to trans and gender diverse people.
With many of these recommendations falling within Commonwealth responsibility, that means – as with so many issues – the upcoming federal election on 18 May could make a big difference to trans out-of-pocket medical costs.
Indeed, this topic was covered in the recent Equality Australia, Intersex Human Rights Australia and LGBTI Health Alliance survey of the major parties, which asked:
Will your party ensure access to gender affirmation treatment and gender diverse people through Medicare? Will your party commit to developing a Trans and Gender Diverse Health Strategy?
Unfortunately, the perfunctory response from the Liberal-National Parties did not address the issue:
‘The Morrison Government continues to support Medicare funding at record levels and takes the advice of medical experts (the Medical Services Advisory Committee) regarding what medical treatments are listed under Medicare.’
The Labor Party response was somewhat better:
‘Many gender affirmation treatments for trans and gender diverse people are covered by Medicare. Labor will ensure that Medicare and the Pharmaceutical Benefits Scheme continue to implement anti-discriminatory policies for LGBTIQ Australians and that same sex couples and their families are not discriminated against in their access to or use of Medicare or the PBS. The health needs of trans and gender diverse Australians will be given specific consideration as part of Labor’s National LGBTIQ Health and Inclusion Strategy.’
Although the ALP response also linked to their National Platform, which is far more explicit on this subject [from page 144]:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Cost should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’
Indeed, the platform commitment to reducing costs, wherever possible, for trans-related medical expenses was highlighted in the Daily Telegraph’s transphobic front-page story on Thursday (‘Doctor Alarm at ALP Gender Agenda’, 25 April 2019):
‘Mr Shorten refused to answer questions from The Daily Telegraph about the policies, which also argue the cost of “gender affirming medical technologies” should be reduced because “cost should not be a barrier to accessing these services”.’
[Of course, if the Daily Telegraph were capable of actual journalism, they would realise this commitment on reducing costs has been in the ALP National Platform since 2015 – I should know, I helped write it[ii].]
The Daily Telegraph‘s transphobic front page from 25 April 2019, which, in addition to targeting trans kids, criticised ALP policy to reduce the cost of ‘gender affirming medical technologies’.
The Greens’ survey response was longer, and included the following commitments:
‘Transgender and gender diverse people are best placed to determine their own transition pathways which may include gender-affirming medical treatments such as hormones and surgical interventions. Under the current healthcare model, gender-affirming treatments are approved at the discretion of medical professionals which can lead to transgender, gender diverse and intersex people being unfairly denied the right to access these treatments.
‘The Greens will provide a way to appeal these determinations by ensuring that all people can access a dedicated complaints body to review medical decisions regarding gender-affirming treatments and surgeries.
‘Finally, as part of the Greens plan to establish a national LGBTIQ+ health strategy, the Department would be tasked with investigating access to gender affirmation treatment for trans and gender diverse people, including whether such treatments could be funded through Medicare.’
On the basis of these survey responses, it is clear that, if the Morrison Liberal-National Government is re-elected, there will be little change to the current prohibitive expenses involved in trans medical treatments.
On the other hand, if the Labor Party is elected, combined with a strong Greens Senate presence, there is at least the possibility of progress on this issue.
Of course, this isn’t the only issue confronting trans and gender diverse Australians. As the ACON Blueprint notes [page 33], access to appropriate identity documentation remains the highest priority identified by community members:
‘The importance of having I.D.s reflecting trans and gender diverse people’s gender featured prominently in the community consultation process. Being able to change legal sex classification and name on NSW birth certificates or NSW recognised death certificates through a simple administrative procedure was the top ranked priority out of 28 options amongst all respondents to the online survey.’[iii]
However, while that policy change is essential, addressing it by itself would only fix part of the problem. Because, unless we simultaneously reduce the high out-of-pocket costs of trans medical treatments, we will continue to consign too many trans and gender diverse Australians to financial hardship and poverty. And that state of affairs is unacceptable.
Priority C: An inclusive and knowledgeable NSW health sector
Priority D: Official government I.D.s and records that reflect trans and gender diverse people’s gender through simple administrative procedures
Priority E: Workplaces, education settings and other environments that are inclusive and respectful of the needs of trans and gender diverse people [and]
Priority F: A vibrant, resourced trans and gender diverse community advocating for its own needs and priorities.
[ii] The original 2015 commitment, which I wrote, read:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirmation surgery. Cost should not be a barrier to accessing these services and/or surgery, and Labor commits to removing, wherever possible, out-of-pocket health expenses for transgender people incurred in relation to their gender identity.’
Scott Morrison became Australia’s 30th Prime Minister on 24 August 2018. In my opinion, based on his (mis)treatment of the LGBTI community, he is unfit to hold that esteemed position. Here’s why:
As Treasurer, Morrison allocated $160million to the same-sex marriage plebiscite
In his first Budget as Treasurer in May 2016, Morrison allocated $160million to the unnecessary, harmful and divisive plebiscite on same-sex marriage. This is despite the fact Parliament could have voted on this issue for free, and the money better spent on literally almost anything else.
As Treasurer, Morrison oversaw $80.5million in spending on the postal survey
Despite the Senate rejecting legislation to hold the Turnbull Liberal-National Government’s proposed plebiscite, it decided to hold a postal survey instead. While Finance Minister Matthias Cormann signed the cheque, the money still came from Treasurer Morrison’s Budget. Once again, Parliament could have voted on this issue for nothing – but they chose to throw away $80.5million of our taxes anyway. Liberal and National Party MPs and Senators should be asked to repay it.
During the postal survey, Morrison campaigned for a No vote
Given his conservative religious background, it is unsurprising Morrison campaigned for people to be denied equality under secular law simply because of their sexual orientation, gender identity or sex characteristics. During the postal survey he said that:
“My view on this topic is as important as everyone else’s. That is why we are having a survey on it. My view is, look I am voting no, it is okay to say no and people should know that.”
To some extent, Morrison was entitled to express that opinion. However, it is included here to demonstrate he believed the postal survey was a legitimate process to determine this issue, a context that makes the next two acts substantially more objectionable.
Morrison voted for every discriminatory amendment put forward during parliamentary debate on same-sex marriage
Following the announcement of the 61.6% Yes vote on 15 November 2017, the Parliament still had to pass legislation to give that result legal effect (thus demonstrating the fundamental wastefulness of the postal survey). During debate of Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Morrison moved amendments to protect organisations and charities that espoused discriminatory beliefs including:
‘the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage’, and
‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth.’
Thankfully, it was defeated. Morrison also voted for every single other set of amendments seeking to add anti-LGBTI discrimination to the Bill. Perhaps the worst was an amendment to insert two separate definitions of marriage in the Marriage Act 1961 (Cth):
(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or
(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.’
Again, this amendment was defeated. But we cannot forget that, despite more than 3-in-5 Australians voting for equality, Morrison voted to entrench separate definitions for marriage in the Act itself. This goes against one of the most important political lessons of the 20th century: separate but equal is never equal.
Morrison abstained from voting on the same-sex marriage bill
Allocating $160million to the plebiscite in his Budget
Overseeing $80.5million spending on the postal survey
Campaigning during the postal survey, and
Participating in debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017,
Morrison abstained on the final vote on this legislation.
As discussed above, he clearly saw the postal survey process as legitimate, but he didn’t see the outcome as legitimate when his side lost. Morrison ultimately refused to implement the will of the people.
This was a gross insult to the 7,817,247 Australians who voted Yes, including the 55% of people who voted Yes in his electorate of Cook.
Scott Morrison didn’t respect our vote on the postal survey. He doesn’t deserve our vote on 18 May.
However, it isn’t just on marriage that Morrison’s words and actions mean he is, in my view, unfit to hold the highest office in the land.
As Minister for Immigration, Morrison imprisoned LGBTI people seeking asylum in countries that criminalised them
Morrison was Minister for Immigration from September 2013 to December 2014. During this time, he imprisoned people seeking asylum on both Nauru and Manus Island, Papua New Guinea. This included lesbian, gay, bisexual, transgender and intersex refugees, despite the fact both Nauru and PNG criminalised homosexuality. This policy effectively continued their persecution – and he continued to do so even after this issue was raised with him.
As Treasurer, Morrison axed funding for the Safe Schools program
Morrison as Treasurer signed off on the axing of an effective, evidence-based anti-bullying program that cost just $8million over three years but provided significant benefits to LGBTI students. This Budget cut was ideological not financial – elsewhere he found room for the $80.5million postal survey, as well as more than $60million per year for the National School Chaplaincy Program.
As Prime Minister, Morrison tweeted against programs supporting trans children
On 5 September 2018 – less than a fortnight into the job – Morrison published his infamous ‘gender whisperers’ tweet:
His ‘let kids be kids’ message in practice said that children should be protected from the very idea that trans and gender diverse people exist. Worse, Morrison was arguing trans and gender diverse children, who are some of the most vulnerable members of the Australian community, should be left to struggle in isolation, without any support from their schools.
If there is a better example of ‘un-Prime Ministerial’ behaviour, I am yet to see it.
As Prime Minister, Morrison refused to condemn gay conversion therapy
In the same week, Morrison was asked about his policy on anti-gay and anti-trans conversion therapy, a practice that is nothing less than the psychological torture of people on the basis of their sexual orientation or gender identity. His response:
“I think people should make their own choices about their own lives… That’s always been my view. I’ve never been involved in anything like that, I’ve never supported anything like that. So mate, it’s just not an issue for me, and I’m not planning to get engaged in the issue.”
He has refused to take any action on this issue in the seven months since. Once again, Morrison has displayed his lack of concern for people whose life experiences are different to his own.
Indeed, on all four of these issues – LGBTI people seeking asylum, LGBTI students, trans and gender diverse children and survivors of anti-gay and anti-trans conversion therapy – he has shown that he basically does not care about some of the most disadvantaged people in society.
If Scott Morrison does not have empathy for others, he should not receive the votes of others.
As Prime Minister, Morrison broke his promise to protect LGBT students against discrimination
In response to the leaking of recommendations from the Ruddock Religious Freedom Review in October 2018, Morrison promised he would protect lesbian, gay, bisexual and transgender students against discrimination by religious schools before the end of the year.
That deadline came and went, and his Government never even introduced a Bill to try to give effect to this commitment. The 45th Parliament has now expired, with LGBT students just as exposed to mistreatment and abuse as they were before his hollow words.
In fact, Morrison delayed any action on this issue by referring the subject of ‘religious exceptions’ to the Australian Law Reform Commission for review by 10 April 2020, meaning LGBT students will not be protected until the start of the 2021 school year (at the earliest). This is an egregious breach of faith of the Australian people, who expected him to back his promise with action.
Morrison has no policies on LGBTI issues
Less than four weeks before the election and it appears the Liberal Party has no policies on LGBTI issues. Try searching the Liberal Party’s website. There’s nothing there. Nada. Zero. Zilch.
In the first 11 days of the election campaign the only comments I can find Morrison has made on LGBTI issues is the same, re-hashed promise to protect LGBT students against discrimination – you know, the promise he has already broken once. It’s clear he does not have a plan for lesbian, gay, bisexual, transgender and intersex Australians.
If Scott Morrison won’t govern for all Australians, he shouldn’t govern any Australians.
Morrison won’t tell us what’s in his Religious Discrimination Bill
The other major outcomes of the Religious Freedom Review were a proposal for a Religious Discrimination Bill (which was recommended by Ruddock) and a promise to appoint a Religious Freedom Commissioner (which was not recommended).
These represent the biggest changes to Commonwealth anti-discrimination law since the introduction of the Age Discrimination Act 2004.
However, despite having the Religious Freedom Review for 11 months, and comments in December by Attorney-General Christian Porter about “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, we are yet to see any details of this legislation.
Indeed, the day before the election was called, it was reported that:
“Attorney-General Christian Porter told The Australian the religious discrimination bill was “well advanced” but “not at the point of readiness”. “It remains clear government policy and, if re-elected, one of the first orders of business would be to pursue that legislation” (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).
This is particularly worrying for LGBTI Australians because, while protecting religious minorities against discrimination would be welcome, a Religious Discrimination Bill could also include new rights for religious organisations to discriminate against LGBTI people (the same kinds of amendments that Morrison himself voted for during the same-sex marriage debate).
The reality is we are being deliberately kept in the dark about legislation that could have significant impacts on Australian society, something the Government itself says will be implemented shortly after the election. That, in my opinion, is treating voters with contempt.
Of course, there are other, non-LGBTI issues that cast serious doubt on Scott Morrison’s suitability for the position of Prime Minister (other actions from his time as Minister for Immigration, and bringing a lump of coal into Parliament, spring immediately to mind).
But, even ignoring everything else, on the basis of his (mis)treatment of LGBTI people alone, in my view it is clear Morrison is unfit to be the leader of this country. It’s now up to the rest of Australia whether they see fit to keep him there on 18 May.
Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.
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
In the last 18 months, anti-discrimination law reform has been the subject of considerable public attention.
Following the Ruddock Religious Freedom Review, and including multiple Senate inquiries, hopes had been raised that lesbian, gay, bisexual and transgender (LGBT) students might finally be protected against discrimination by religious schools under Commonwealth law.
So far, those hopes have been dashed. Despite promising to do so, the Morrison Liberal-National Government failed to pass any changes to the Sex Discrimination Act 1984 (Cth) to repeal or limit the exceptions that allow religious schools to discriminate against LGBT kids prior to the election being called.
In this article, I will attempt to explain how we got here (including where things stand now), who is to blame and what will likely happen from here.
How did we get here?
In November 2017, then-Prime Minister Malcolm Turnbull referred the issue of whether Commonwealth law adequately protects religious freedom to a panel headed by former Liberal Attorney-General Philip Ruddock.
The Ruddock Review investigated a wide range of issues, including religious exceptions to LGBTI anti-discrimination laws, before handing its report to Turnbull in May 2018 – which the Liberal-National Government then sat on.
In October 2018, the Sydney Morning Herald published the leaked recommendations of the Review, focusing on proposals to clarify the existing right of religious schools to discriminate against, and expel, LGBT students.
This prompted significant public outcry, including from many parents who had no idea that religious schools, funded by enormous amounts of taxpayers’ money, could lawfully mistreat vulnerable kids in such an abhorrent and appalling way.
New Prime Minister Scott Morrison responded by saying his Government would amend the Sex Discrimination Act to prohibit discrimination against LGBT students before the end of the year (2018). It is probably also useful to remember he did this in the context of the lead-up to the Wentworth by-election, which the Government feared losing to a backlash from moderate voters (narrator: they did).
That Committee reported in late November, recommending that “the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act” [Recommendation 3].
This report was immediately followed by Labor introducing their own Bill, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. As the name suggests, its sole focus was on removing discrimination against students, in line with what Morrison had promised in October.
However, instead of passing it as he had committed, the Senate referred this Bill off to a second inquiry over the summer break – meaning LGBT students would not be protected for the start of the 2019 school year.
Morrison and Attorney-General Christian Porter simultaneously provided the Government’s response, in which they abandoned the earlier, explicit promise to protect LGBT students at religious schools, instead committing to send the entire issue of religious exceptions in Commonwealth, state and territory anti-discrimination laws to the Australian Law Reform Commission (ALRC) for yet another review.
It was therefore unsurprising when, in February 2019, the Government-dominated Senate Committee inquiring into Labor’s Bill recommended that not only should Labor’s Bill not be passed, but that “the bill, circulated amendments and all relevant matters be referred to the Australian Law Reform Commission for full and proper consideration.”
Given the Liberal-National Government’s ongoing opposition to legislation addressing this issue, that meant no amendments to the Sex Discrimination Act 1984 were passed in February or March.
Despite the flurry of activity on this issue over the past 18 months, and the past six months in particular, the legal situation now is unchanged:
Under the Sex Discrimination Act 1984 (Cth), religious schools are legally permitted to discriminate against, and expel, lesbian, gay, bisexual and transgender students on the basis of who they are.
They are also free to fire, and refuse to hire, LGBT teachers and other staff, despite the significant amount of taxpayers’ money used to pay their salaries.
This is obviously incredibly disappointing, especially given the supposed bipartisan commitments to address this issue made late last year. Which prompts the equally-obvious question:
Who is to blame?
While responsibility for major #auspol policy failures like this can usually be shared around, the blame for the lack of action in this particular area lies squarely at the feet of the Morrison Liberal-National Government.
The have failed to progress anti-discrimination law reform in four key ways:
The Morrison Liberal-National Government refused to introduce its own Bill to protect LGBT students
Despite Prime Minister Morrison’s October 2018 commitment to introduce and pass amendments to the Sex Discrimination Act to protect LGBT students before the end of the year, his Government never actually introduced its own Bill to make these changes. Which, you’d have to admit, makes it extremely difficult to actually pass anything.
Indeed, if the Liberal-National Government was ‘fair dinkum’ about fulfilling its promise, it would have at least tried to move its own legislation on this issue. With a Prime Minister who is quite fond of saying ‘if you have a go, you get a go’, his Government didn’t bother to have a go at changing this law – meaning LGBT students don’t get a go at learning in a discrimination-free environment.
The Morrison Liberal-National Government sought to introduce new powers to discriminate
As noted above, the Labor Opposition and Greens both introduced their own Bills to protect LGBT students, and LGBT students and teachers, respectively. The Labor Bill in particular was subject to Senate debate in late 2018, before being referred to the second Committee inquiry.
During this debate, the Liberal-National Government introduced amendments that would ensure that, even if religious schools lost their specific exception in section 38(3) of the Sex Discrimination Act, they would continue to be able to discriminate under the general religious exception in section 37(1)(d) [Government amendment KQ147].
They also sought to expand the reasonableness test for indirect discrimination to include consideration of whether any “condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed” [Government amendments KQ148, 150 and 151]. This would have effectively expanded rather than restricted the range of groups who could be discriminated against because of religious beliefs to include intersex students as well (among others).
Finally, the Government wanted to allow religious schools to discriminate against LGBTI students if it was part of teaching activity (broadly defined to capture “any kind of instruction of a student by a person employed or otherwise engaged by an educational institution”) as long as it was done “in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” [Government amendment KQ149].
If any or all of the Morrison Government’s amendments had been passed, it would have meant religious schools could have continued to discriminate against LGBT students – it just would have been done under different sections of the Act.
The Morrison Liberal-National Government tried to limit changes to preventing expulsion only
Another way in which the Government undermined anti-discrimination law reform was by narrowing its scope to preventing religious schools from expelling or refusing to enrol LGBT students, while continuing to allow them to discriminate against, and mistreat, vulnerable kids in other ways.
This approach formed part of Prime Minister Morrison’s early rhetoric following the leaking of the Ruddock Review Recommendations in October 2018, as he focused on expulsion: “I don’t think if someone’s at a school they should be kicked out because they have a different sexuality to what might be believed to be the appropriate thing by a particular religious group” [emphasis added].
While subsequent debate seemed to broaden to cover all forms of discrimination against LGBT students, in February 2019 Government Senators once again tried to limit the reforms to preventing expulsion only, with The Australian reporting Government members of the Senate Committee sought a deal with the Opposition on this issue (‘ALP stops bid to protect gay kids’, The Australian, 19 February 2019).
Thankfully, the Opposition rejected this narrow approach. This is important because there are many different ways in which religious schools can discriminate against LGBT kids, without necessarily expelling them, and they are all harmful (see, for example, my own story here: ‘The longest five years’ ).
Only removing the power to expel, while allowing schools to mistreat students in myriad other ways, would have been completely inadequate and inappropriate.
The Morrison Liberal-National Government has done everything in its power to delay reform
There is absolutely no reason why the Commonwealth Government, and Parliament, could not have passed reforms to the Sex Discrimination Act, protecting LGBT students, before the end of 2018.
How can I say that so confidently? Because the ACT Government did exactly that, passing it owns reforms – based on the best practice Tasmanian Anti-Discrimination Act 1998 – between the leaking of the Ruddock Review Recommendations in October and the end of the year. These reforms, which protect both LGBT students and teachers, will commence by 6 June 2019 at the latest.
Instead, at Commonwealth level, we have had Labor and Greens Bills, and two Senate inquiries, but no Government legislation and no change to the law.
Even worse, we now have a reference to the ALRC that won’t report on the issue until 10 April 2020, meaning any Bill arising from it will likely not be debated until the second half of next year. Consequently, any reforms to protect LGBT students wouldn’t take effect until the start of 2021 – at the earliest.
Attorney-General Christian Porter
It is clear, from these four arguments, that the Morrison Liberal-National Government is responsible for the fact LGBT students are still not protected against discrimination as we start the federal election campaign.
What people may not be aware of is that they are also responsible for two major threats to LGBT anti-discrimination laws in the near future.
The first is the ALRC inquiry itself. Its terms of reference includes the following:
consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australia law should be made in order to:
limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
Now, some people might see the first dot point, and specifically the reference to limiting or removing religious exemptions, as encouraging. And it could be – except that this is also what religious fundamentalist organisations, such as the Australian Christian Lobby, also want (for example, the ACL’s own submission to the Ruddock Review stated that ‘State and Commonwealth Anti-Discrimination laws establish an unhelpful and incomplete framework of religious exemptions which inadequately balance the right of religious freedom against the right to non-discrimination’ before recommending ‘that existing exemptions in anti-discrimination law re reframed as ‘general limitations clauses’).
The remainder of that clause – ‘while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos’ – is where the danger lies. Namely, religious exceptions may simply be replaced by the introduction of positively-framed rights to discriminate against LGBT people.
The second dot point is just as problematic. Despite the fact there is limited, or no, evidence that people expressing discriminatory views of marriage are suffering real-world adverse consequences, the ALRC is supposed to give significant attention to ‘protecting’ them.
This includes undermining the best practice LGBTI anti-vilification laws found in the Tasmanian Anti-Discrimination Act 1998 (which are equivalent to section 18C of the Racial Discrimination Act, and the primary reason why the RDA has been raised in this context) [For a comparison of LGBTI anti-discrimination and anti-vilification laws, click here].
The second threat comes from another part of the Morrison Liberal-National Government’s response to the Ruddock Religious Freedom Review: its commitment to introduce a Religious Discrimination Bill.
Once again, this should be a positive development. Most people interested in human rights, including myself, support the inclusion of religious belief or lack of belief as a protected attribute in anti-discrimination law in jurisdictions where it is not currently protected (specifically, the Commonwealth, New South Wales and South Australia). This will help ensure religious minorities are protected against discrimination in education, employment and service delivery.
On the other hand, a Religious Discrimination Bill could become a vehicle to include positively-framed rights for religious individuals and organisations to discriminate against others, becoming a stealth ‘Religious Freedom Bill’, in the same way that some Liberal-National MPs and Senators tried to turn a same-sex marriage bill into anti-LGBTI equality legislation.
The truth is we will not know which option, good or bad, the Government is pursuing until we see the text of the Bill itself. Which is why Attorney-General Porter’s announcement that the Religious Discrimination Bill would not be released until after the election is so worrying (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).
Despite saying in December at the release of the Ruddock Religious Freedom Review that “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, LGBTI Australians will now be kept in the dark on a key new law that could have a significant impact on our rights (although it is probably safe to assume major religious organisations have been consulted on its drafting).
Not only has the Morrison Liberal-National Government stopped laws to protect LGBT students against discrimination from passing during the 45th Parliament, they have already started two processes (the ALRC Inquiry, and the Religious Discrimination Bill) that could see LGBT rights go backwards in the 46th.
What about the other parties?
The Labor Party has largely been supportive of LGBTI rights throughout this (sometimes convoluted, but consistently frustrating) process.
As discussed earlier, they introduced the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that does just what it says on the box. They have been very clear they will protect LGBT students in religious schools against discrimination if they are elected next month.
However, the ALP has been somewhat less clear in terms of their plans for teachers. While committing to remove the exceptions that allow religious schools to fire, and refuse to hire, LGBT teachers and other staff, they have also made vague comments about introducing amendments to ensure religious schools can continue to impose their ‘ethos and values’. Bill Shorten and the Labor Party need to outline exactly what they intend to do on this issue, before the election.
The Greens are obviously supportive of removing exceptions that allow discrimination against both LGBT students and teachers. They have also indicated that religious exceptions should be removed in other areas (including health and community services), as well as in the Fair Work Act 2009 (Cth).
In terms of the minor parties, the right-wing fringe groups (including Pauline Hanson’s One Nation, Cory Bernardi’s Australian Conservatives and the racist Senator who shall not be named) are exactly as homophobic and transphobic as you would expect, and don’t deserve our attention.
However, one minor party earns a special mention – although not for reasons they would appreciate. That is because the Centre Alliance (the renamed Nick Xenophon Team) supported some of the Government’s amendments that, in practice, would have permitted religious schools to discriminate against LGBT students. In fact, the position of the Centre Alliance is the reason that Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill could not at least pass the Senate in late 2018.
What happens next?
The outcome of the federal election on Saturday 18 May will determine what happens next in terms of anti-discrimination law reform.
If the Morrison Government is returned, it is unclear whether LGBT students will be protected, and if so what that change would look like. Even if they remove the specific religious exceptions in the Sex Discrimination Act, it is highly likely they will simply replace them with new, positively-framed rights for religious organisations to discriminate against LGBT people, including in education.
Any reforms under a re-elected Liberal-National Government will also be delayed until at least the second half of 2020 (after the ALRC has completed its inquiry), meaning LGBT students in religious schools will be exposed to discrimination until at least 2021.
And, as discussed above, both the ALRC inquiry itself, and the imminent (although still secret) Religious Discrimination Bill, could see LGBTI rights actually go backwards under a 2nd term Morrison Government.
If the Labor Party is elected, on the other hand, it is highly likely that LGBT students will be protected against discrimination as a matter of priority. It is also probable that LGBT teachers and other staff will be protected in some form – although it will be up to LGBTI organisations to push them to make sure any such changes are as straight-forward as possible, and not undermined by ‘ethos and values’-style amendments (an increased Greens presence in the Senate would also assist in this respect).
Nevertheless, we must remember that the only thing in this area that is guaranteed to happen, every school day of this election campaign – and for months, and possibly years, afterwards – is that too many LGBT students will attend a school where they can be lawfully discriminated against.
And the primary reason is that Prime Minister Scott Morrison broke his promise, made just six months ago, to do something about it.
He had beautiful blue eyes, scruffy blond hair and a mischievous smile, but it’s his eyelashes I remember most more than a quarter of a century later.
The day before, my Mum had driven me the eight hours from the farm west of Rockhampton where I was raised, to this boarding school in Brisbane’s inner-west. The day after I would start year 8, and what would be the longest five years of my life.
But that January afternoon, as the new boarders got to know each other down at the pool, I was transfixed by his eyelashes, droplets of water on them glistening in the Queensland summer sun.
That moment crystallised the feelings of difference that had slowly accumulated over the previous few years. At 10 and 11, I had grown increasingly bewildered as the other boys and girls at Blackwater primary began to express interest in each other.
At 12, in this unfamiliar environment, a long, long way from home, I finally understood why.
I liked boys.
It took me another month or so to learn the right language to describe who I was. But I realised quickly afterwards that being gay was unlikely to be welcomed. Not by my National Party-voting parents (my Dad had actually nominated for federal pre-selection the year before). Not by my classmates. And definitely not by my school.
This was 1991. Homosexuality in Queensland had only just been decriminalised – and even then, the Parliament had imposed an unequal age of consent for anal intercourse (to ‘protect’ boys from being recruited to the homosexual lifestyle), something that would not be repealed until 2016.
Social attitudes were changing, but at a glacial pace. Many parts of the state were still firmly stuck in the Joh Bjelke-Petersen era. My school was one of them.
Based on the Lutheran faith, it enforced both religious indoctrination, and homophobia, with steely German efficiency.
We had chapel five times a week (Mondays, Tuesdays, Thursdays, Fridays, and an hour-plus every Sunday), and bible studies another two or three times.
The school rules, which were printed in the student diary, were based on supposedly ‘christian’ principles, and included the statement that homosexuality would not be tolerated because it was not in accordance with god’s will.
The sex education that was provided was a superficial, hetero-normative joke. While the jokes made by my classmates, often within earshot of unresponsive staff, were frequently homophobic.
If I was going to survive here, I would have to suppress my burgeoning same-sex attraction with all my might.
It is hard, even now, especially now, to find the words to describe the utter loneliness of what followed.
Being surrounded 24/7 by 180 other boys, at a school of 1600 students overall, but having absolutely no-one to talk to, or confide in.
Needless to say there were no ‘out’ role models to look up to.
So, I quickly cut myself off, socially and emotionally, rather than risk the ostracism – or worse – of letting slip my secret.
Looking back, it was probably the only rational course of action. But it would slowly erode, and corrode, my self-esteem.
I became so withdrawn that the rest of year 8, and most of year 9, was a numb blur.
As an academic child – some (well, if I’m being honest, most) might say nerd – I concentrated on my schoolwork.
The only snippets I learnt about what it meant to be gay came from pop-culture.
Sneaking peaks at Outrage magazine at the newsagent between school and the local shopping centre.
Scanning newspapers for any gay references I could find. One article about homosexuality from The Australian, back when it actually did journalism, sticks out in my mind, at least in part because of the scantily clad male torso it featured.
Trying to stay up late in the dorm to watch Sex with Sophie Lee, and Melrose Place featuring Matt the (largely-sexless) gay social worker.
Not exactly the most well-rounded education on ‘gayness’, but I devoured any morsel I could get.
My clearest memory of year 9 came one evening during our allocated study period, during which each boarding house year group was supervised by a year 12 student.
This particular night our allocated ‘senior’ was joined by his twin brother and their friend, and they proceeded to discuss, in front of us, what they had got up to during the previous weekend.
On the Saturday night they and some others had apparently gone to a major bridge in Brisbane, found a toilet block where ‘faggots’ (their word, not mine) congregated, and ‘rolled’ them.
They were confessing to gay-bashing. Except this was no ordinary confession. They were smiling. Joking. Laughing. They were bragging.
Long before the term ‘toxic masculinity’ was popularised, I was learning what it meant, face-to-face.
I could not be 100 per cent certain whether what they were saying was true, or just teenage ‘bravado’ (even if it was the opposite of real bravery).
But I was now absolutely sure of one thing. Being gay at this school would not just lead to social exclusion, and possible expulsion. Being gay here was physically dangerous too.
I retreated even further into my closet. It became my whole world.
Unsurprisingly, denying who I was, and isolating myself from my surrounds, was profoundly damaging to my mental health.
I suffered what I would later understand was major depression.
By the second term of year 8, I was already contemplating what seemed like the only way out: ending my life.
At first these thoughts came weekly. Then every few days.
By the start of year 10, I was thinking of killing myself upwards of a dozen times every 24 hours.
There wasn’t a day from then until after I finished year 12 that I didn’t think of committing suicide.
Amidst the gloom, year 10 provided the one enjoyable term of my entire five-year stint of boarding school.
That was an eight-week ‘outdoor education’ program, where each class of about 30 lived in spartan accommodation in the hills north of Toowoomba.
By spartan, I really mean it. No flushing toilets. No running water full stop. To have a hot shower you had to build the fire, and boil the water, yourself. And after all that it only lasted for a total of about 30 seconds.
Still, there was something enjoyable about having no classes, and being immersed in an environment where kids could just be kids for a bit. I finally managed to make a few friends, mostly among the female students, something that would come in handy during the remaining two and a half years of hell in that school.
Even out there, however, we couldn’t fully escape the religious inculcation the school was so expert in. We still had group daily prayer. And church every Sunday.
As part of its stereotypically ‘protestant’ emphasis on self-reliance, towards the end of the eight weeks we were also made to do a 24- or 48-hour ‘solo’, where we were left in the middle of the bush, with little other than a flashlight and a bible for company.
So I read it, cover to cover, in the desperate hope I might find something in there to help me overcome my predicament.
Which began a period of about 6 months where I would engage in an individual nightly prayer, wishing I would wake up as something other than myself. Each morning I was profoundly disappointed.
I was more lost than ever.
The nadir of this search for ‘redemption’ came late in year 10, when I sought the assistance of one of the pastors to be baptised.
For a couple of months that involved spending an hour each week with him, discussing faith and what it meant to me.
We didn’t discuss homosexuality. I wasn’t going to raise it, and he certainly didn’t ask.
But it must been have clear to this kind old man (and that is still how I remember him) that the young boy in front of him was drowning.
If it was, then he himself was too far out of his depth to help.
My strongest memory of that entire process was sitting in his office, listening to – but not really hearing – his words, as it felt like my whole body dissolved into the couch, until I wasn’t there anymore.
It was clear that religion was not going to be my life-raft.
Perhaps surprisingly, by year 11, things had slowly started to improve.
The friendships I had made with a few of the female day students strengthened. Even if I felt I couldn’t disclose my secret to them, just having someone, anyone, to talk to, even about random, meaningless stuff, made the days seem not so long, and the nights not quite so terrifyingly alone.
I was also learning more about this whole ‘gay’ thing.
One of the advantages of being a nerd meant I was free to visit, unsupervised, the University of Queensland Social Sciences Library, ostensibly to undertake research for my school assessments. In fact, I was becoming closely acquainted with the work of Alfred Kinsey and his ‘Sexual Behaviour in the Human Male’.
I surreptitiously picked up a few copies of Brother-Sister (the 90s, Brisbane equivalent of the Star Observer), reading them cover-to-cover and then throwing them away before heading back to campus.
It was reassuring to know that a gay world did exist out there, somewhere – a suburb, and a galaxy, removed from where I was.
Pop-culture was also steadily expanding its, and my, gayze. Tales of the City (the TV series) was an eye-opener, with its heady depiction of gay life in 70s San Francisco. It even made being gay look like it could be fun.
And I distinctly recall the moment I first saw the photos of Ian Roberts in Blue Magazine (images that were committed to memory for several years after that).
Life in the dorms even got slightly easier with the installation of shower curtains. Which, unless you’ve lived in a boarding house, may not seem like a big deal, but finally provided enough privacy to do what teenage boys do… A lot…
It felt like the invisible but ever-present weight I had been carrying was slowly lifting. There was much less ‘praying the gay away’, replaced with the almost imperceptibly small beginnings of self-acceptance.
Any progress I had made was stopped in its tracks by a moment of brutality.
Well, two moments.
Physically, I had matured faster than some of my peers, and at 15 had a nascent patch of hair on my chest (which, I’ll be honest, I was a little bit chuffed about).
One evening early in year 11, after study a group of about half-a-dozen boys from my year ambushed me between two buildings, pinned me down and removed my shirt.
I struggled to break free, but there were too many of them.
I called out for help, which was then muffled by one of their hands across my mouth.
I didn’t comprehend what was going on, until one of them took out a razor and shaved my chest.
I think the whole thing was all over in about three minutes.
Looking back, I don’t know how but I somehow managed to compartmentalise this un-provoked attack. Pretending it didn’t mean anything. That it was ‘just’ some harmless hazing. That this kind of thing happened to everyone. Didn’t it?
Perversely, the dissociation of more than three years in the closet helped me to detach myself from this incident.
I tried to move on. I was even partially successful. Until it happened again.
The second assault, towards the end of year 11, was much, much worse.
The modus operandi was similar – the shaving of my by-then slightly thicker thatch.
There were more people involved, this time at least a dozen, maybe 15 (including, sadly, my year 8 crush, the one with those ‘eyelashes’).
It happened in the dorm cubicle I shared with three other students, on the floor right next to my bed, stripping away any sense of safety it had previously provided.
The fact they came prepared with shaving cream, in addition to a razor, revealed just how pre-meditated it was.
I didn’t struggle. Or call out for help. The first attack had shown there was no point.
In fact, what sticks with me is just how quiet it was.
The sound of squeaky sneakers on the wooden floor. The whirr of the shaving cream. That’s all.
They didn’t even need to talk to each other. They knew what they were doing, having taken the school’s German efficiency and applied it to brutalising another student.
This was an act of dominance, and humiliation. I was confronted by my sheer powerlessness in comparison.
But the biggest psychological damage was inflicted by its mere repetition.
This was not, could not, be written off as simple ‘hazing’, lazily picking on outward physical difference.
Even if they didn’t express it – and I couldn’t say the words out loud – I knew they had worked out I was different in an inward, and far more significant way.
They were going to make me pay for it. I did. They had broken me.
I didn’t report them. How could I? They constituted about a third of all the year 11 students in the boarding house. The popular boys. The rugby players. People who I continued to share a ‘home’ with, and see every morning, afternoon and evening of every single day.
I knew, without qualification, that if I complained, and any of them (or all of them) were punished as a result, the following 12 months would be living hell. The violence wouldn’t stop; it would escalate.
So I lowered my head.
I did confide in a couple of my female friends, Jo and Cindy. Who were rightly horrified and who, unbeknownst to me, reported the second incident to the school.
The school’s response was, to put it mildly, shocking.
They knew what had happened. And they knew exactly who had been involved. Nevertheless, they refused to take action unless I made a formal complaint – something which they must also have realised I couldn’t do, based on an entirely legitimate fear for my own safety.
We reached a stand-off.
The boarding house’s improvised approach was to take me out of study one night, and sit me alone on an uncomfortable chair in a fluorescently-lit corridor. They forced all of the boys who had been involved (thus conceding they knew exactly who did it) to come and apologise to me, one after another.
I don’t remember much of that experience. I certainly don’t recall any genuine contrition on their parts for the actual attack. Although I do remember several of them thanking me for not ‘dobbing’, and others apologising to me because they incorrectly thought that I had complained but now knew I hadn’t. Such were the warped moral priorities of the teenage male boarding student.
About a week after those ‘nonpologies’, the school announced the student body leaders for the following year.
One of the boys who had assaulted me was named school captain.
Another was made head boarder.
If that wasn’t enough of a sick joke, because of my grades I was also named a prefect – and so would have to spend even more time alongside them.
The icing on the cake of that almost unbelievably horrible year came a couple of weeks later.
As was the style at the time – but probably also as a reaction to what had happened to me – I had clippered my hair in a buzz cut.
Sitting in the back row of my Economics class, the teacher, who was also the ‘dean of student welfare’ for year 11, joked to the class, “didn’t you get enough of having your hair shaved in the boarding house, Alastair?”
It was clear the school would never give a shit about me.
After four years in the closet, and beatings both physical and psychological, I barely cared about myself.
Which meant that year 12, for me, was simply a battle for survival.
The lowest point arrived in chapel one morning when, in front of years 11 and 12, a new pastor gave a sermon about a teenager from his previous parish.
The boy had come to see him, ‘confused’ about life and his place in it. The pastor claimed he had tried to help, but the boy ultimately took his life.
The pastor described how he was now in a better place, in a way that suggested this was not the worst thing the boy could have done in those circumstances.
That pastor had effectively ‘dog-whistled’ his insidious homophobia to a room full of 600 impressionable 15, 16 and 17 year-olds, intimating that they should consider killing themselves if they were confused.
Fortunately, my contrarian nature meant my immediate reaction was to think, “fuck you, I won’t do what you tell me”. It was possibly even the first day I believed I might eventually outlive that school.
But I often think about how the other 40 or 50 queer kids who were in chapel that morning reacted to his hate.
The highest point of senior year came one August afternoon, as I sat in the office of my favourite English teacher, and the dean of student welfare for year 12, crying.
Yes, crying. Why was that a highlight? Because I had just committed the ultimate act of defiance in a school that was intent on erasing any student who happened to be gay or lesbian.
I had come out.
It almost goes without saying that it was the most difficult thing I had ever done. I was so emotionally spent afterwards that, even though Gayle was supportive (and wanted to help me attend a support group outside of school), I did not have sufficient energy left to take the next step. Or any steps.
Indeed, it would be another two years before I told another soul.
But it was enough that someone finally knew my secret.
It was also a pre-emptive act of remembrance. If I took my life in the weeks or months that followed, someone would know why. And they might be able to address the set of circumstances that contributed to it.
The final term of year 12 was like the home straight of a marathon, as I limped and staggered towards the end. I literally had nothing left of myself to give.
Even my grades started to suffer (although I suspect Gayle encouraged some of the other teachers to give me special consideration).
But as I fell through the finish line tape, and started to maybe hope that the future could have something, anything, better to offer than the previous five years had mercilessly dispensed, the school had one last insult to add to my many injuries.
At the conclusion of each year in the boarding house, the senior students handed out ‘awards’ to the year 8, 9, 10 and 11 kids, while the year 11 students were given responsibility to dole out awards to the seniors.
Mine? In front of the entire boarding house, including staff, I had to walk up and collect the ‘Big Fat Poof’ award.
None of the staff intervened. All of the other kids laughed.
Those students had found the language to describe what the year 11s the year before – my classmates – had suspected. They saw right through me.
It almost seems appropriate my time at that wretched institution ended in one final act of humiliation before I walked out of its unwelcoming gates.
A couple of days after final exams, my Dad drove me that same eight hour-trip back to my childhood farm in Central Queensland for the final time.
Sitting in the passenger seat, I was, in many ways, the same kid I had been five years prior. My physical age might have been 17, but emotionally I was only 12; specifically, that 12 year-old boy transfixed by those eyelashes, experiencing the exciting and confusing first throes of a teenage crush.
Except those subsequent years had stripped away any optimism I might have once held about the future, as my school and classmates collectively drummed into me that who I was was something to be ashamed of.
My teenage years had been stolen from me by religious indoctrination, and homophobia – which, at least in that environment, were very closely inter-twined.
I would have to ‘do over’ my adolescence, in the months and years to come. To make stupid mistakes, and learn from them. To grow up. To fall in – and out – of love.
Fortunately, the world outside would prove a far more accepting, and interesting, place than my boarding school had been.
It’s hard to imagine how it could have been any worse.
Ten years later I found myself attending my school reunion on a rainy night in a dingy function room in the Valley.
You may ask why I would subject myself to that (and I certainly am as I write this) but, at the time, I felt like I had something to prove.
Unlike Romy, it wasn’t to show how successful or popular I was, merely to demonstrate that they hadn’t broken me. After everything they had put me through, I was still standing.
It wasn’t necessarily true. My personal life was basically a mess, and would be for another few years, right up until I met my fiancé Steve. But that wasn’t going to stop me from faking it.
Nevertheless, I am thankful I went for one reason. Early in the evening, one of the boys who had been involved in the second assault on me saw me through the crowd, made a beeline straight toward me, and unprompted offered me his apology for what he, and the others, had done.
Not only was it sincere, it was obvious the incident had weighed heavily on him in the decade since.
Nothing was going to take back what had happened. But it was comforting to hear the wrong acknowledged, and to know at least one of the perpetrators was genuinely remorseful.
Another decade later I went to my school’s 20-year reunion on a sunny afternoon at a bowling club down by the Brisbane River.
This time I didn’t have anything to prove, but I did have something to gain – to reconnect with some of the friends I had made during my time there. Which I did, although once again the highlight was a pleasant surprise.
Mid-afternoon I found myself having a chat with the boy (well, now middle-aged man) with those ‘eyelashes’, as well as another student with whom I had shared a dorm cubicle all the way back in 1991.
The crush was long gone (what had I been thinking?). Instead, we had a lovely conversation about our lives and what we were up to. They offered their heart-felt congratulations on my engagement to Steve, even remarking that he was a ‘good-looking fella’ (well, I certainly think so).
It was all incredibly natural, and showed how much they had evolved in the intervening decades.
Indeed, we had all changed.
Well, nearly all. While it had eventually got better for me, I was soon reminded that it didn’t get better for everyone.
I sat outside on the wooden steps leading down to the green chatting with another student from my year. After I told him about my relationship, he volunteered that he had been out on the gay scene during his twenties, but that he had since rediscovered Jesus and was now straight.
Worse still, he was employed by a faith-based organisation working with troubled youth on the streets. He was likely perpetuating the same harmful messages we had received, and subsequently contributed to him becoming ‘ex-gay’, inflicting them on another generation.
While I had somehow managed to survive that horrific school, and was living a beautiful life teenage Alastair scarcely would have dreamed possible, for him those same five years seemed to be stuck on repeat.
For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/
Over recent years there have been a number of legal and policy reforms that have benefitted the lesbian, gay, bisexual, transgender and intersex community (not the least of which was the passage of same-sex marriage).
However, many of these changes have been piecemeal in nature, and too often they have been unnecessarily compromised by limitations or religious exceptions (once again including same-sex marriage, see No, we don’t have marriage equality yet).
At least part of the reason for the ad hoc and incomplete nature of these reforms is the lack, or insufficient amount, of representation of the LGBTI community in decision-making.
For the purposes of this article, by LGBTI representation I mean:
Representation in Parliament
Representation in the Executive, and
Representation through Consultation
I will address each of these areas in turn.
Australia’s first out Commonwealth representative, former Senator Bob Brown.
LGBTI Representation in Parliament
It is fair to say that there has been rapid improvement in this area in the last four years, especially in relation to Commonwealth Parliament.
When I wrote about this issue early last term (see LGBTI Voices Absent from the Chamber), there had still never been an out LGBTI member of the House of Representatives. Now there are five:
Trent Zimmerman, who was the first out gay man elected to the lower house in late 2015
Julian Hill, Trevor Evans and Tim Wilson, who were all elected at the 2016 federal election, and
Kerryn Phelps, who became the first out lesbian elected to the House of Representatives in late 2018.
These MPs have joined the four current LGBTI Senators:
Penny Wong, who was the first out lesbian elected to either chamber
Louise Pratt and Dean Smith, and
Janet Rice, who I understand was the first out bisexual elected at Commonwealth level.
There have also been three previous gay Senators (Bob Brown, who was the first out gay man elected to either chamber, Brian Greig and Robert Simms).
So, in the lead-up to the 2019 election, we now have nine LGBTI MPs and Senators, out of 226 in total, which is an encouraging start.
However, if one of the main benefits of having LGBTI representation in Parliament is to ensure it hears from a diversity of views, then those LGBTI representatives should themselves reflect the diversity of our community.
Unfortunately, at this stage that is clearly not the case. As with the Parliament more generally, LGBTI MPs and Senators have so far been predominantly cis white men.
There have been twice as many male LGBTI MPs and Senators as female ones (with a similar discrepancy in the NSW Parliament as well).
There has still never been a transgender MP or Senator in Australia, or even an MP at state or territory level (for comparison, New Zealand’s first transgender MP, Georgina Beyer, was elected almost two decades ago).
Despite making up a large proportion of the LGBTI community, there has only been one out bisexual MP or Senator.
There has also been only limited representation of queer people of colour, with Penny Wong federally, Harriet Shing in Victoria’s upper house and Chansey Paech, the first gay Indigenous MP in the Northern Territory Parliament, and
There has never been an out intersex MP, at Commonwealth or state and territory level, although Tony Briffa was the first intersex person elected mayor in the Western World.
While increasing the number of MPs and Senators who are LGBTI is important, so too is ensuring that they come from across the LGBT and I communities, so that we do not continue to have a mostly white, mostly gay male, with some lesbian and one bisexual, but not transgender or intersex, parliamentary contingent.
Australia’s first out female Commonwealth representative, Senator the Hon Penny Wong.
LGBTI Representation in the Executive
Perhaps just as important as having LGBTI voices in the Parliament, is having LGBTI representation formally embedded within the executive arm of Government.
The most obvious example of this would be having a formally appointed Minister for Equality, a role Martin Foley has played in the Victorian Government for more than four years.
There is no equivalent position within the Morrison Liberal-National Government federally, although Louise Pratt is currently the Shadow Assistant Minister for Equality in the Labor Opposition (and would presumably fulfil this role in a Shorten Government, should they be elected in May).
As far as I am aware, there is also no current Minister or Shadow Minister for Equality in NSW, although perhaps that is something that could change after the upcoming state election on Saturday 23 March 2019.
At the Commonwealth level at least there is another way in which LGBTI issues should be represented, and that is through the appointment of a standalone Commissioner for LGBTI issues within the Australian Human Rights Commission.
As I have written previously (see 5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform), the Commission is currently unable to adequately perform this function, with LGBTI issues forming just one part of the overall policy responsibilities of the Human Rights Commissioner, sitting alongside ‘religious freedom’ (with which it often competes for attention, sometimes unsuccessfully).
Fortunately, the appointment of a standalone LGBTI Commissioner within the Australian Human Rights Commission has been promised by the Shorten Labor Opposition, so this is potentially something that may change in the near future.
Another model of LGBTI representation that has been adopted in Victoria is a Commissioner for Gender and Sexuality within the public service, to coordinate LGBTI policy and programs across Government. This is something that again should be considered elsewhere, including at Commonwealth level and in NSW.
Any Minister for Equality and/or public service LGBTI Commissioner should also be supported by an office for equality within a central agency, preferably the Department of Prime Minister and Cabinet, and its respective state and territory equivalents.
Adopting any of the above formalised representation structures within executive government (and preferably all of them), will hopefully ensure that LGBTI issues are adequately considered by Governments of all persuasions.
LGBTI Representation through Consultation
The third and final means of LGBTI representation is no less important than the first two – and that is ensuring Government hears from lesbian, gay, bisexual, transgender and intersex communities themselves about the issues that affect them.
While this happens occasionally now (with Governments consulting directly with a few key groups on select policy proposals) what is needed is an ongoing, formalised structure whereby LGBTI organisations, and individuals with relevant expertise, are appointed to panels to represent the views of the LGBTI communities to decision-makers on a consistent basis.
Given the impact of justice, health and education laws and policies on LGBTI communities, especially at state and territory level, I would suggest (at least) three standing committees on each of these respective portfolio areas, and in other areas on an ‘as needed’ basis.
There are of course risks to this model, including that panel members do not accurately, or adequately, reflect the views of the communities they are supposed to represent.
These risks can be minimised by ensuring there are open application processes, and that applicants demonstrate how they propose to reflect the opinions of the LGBTI community in performing their role. Consideration could also be given to term limits to ensure appointees are not ‘captured’ by the bureaucratic process, thereby reducing their effectiveness in advocating to Government.
Ultimately, if LGBTI representation can be increased in Parliament, the Executive and through Consultation, we will see better decision-making by Governments on LGBTI issues, for the benefit of the entire community.
Thank you for the opportunity to provide a submission to this important inquiry.
In this submission I will focus on one policy issue – the ability of religious aged care services to discriminate against lesbian, gay, bisexual and transgender (LGBT) employees – and its impact on people accessing those services, including LGBT individuals and couples.
As you are likely aware, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians under Commonwealth law for the first time.
This Act, like the majority of pre-existing state and territory laws, provided general exceptions to religious organisations allowing them to discriminate both in service delivery, and employment, including against LGBT people.
However, in an important step forward for equality, the new section 37(2)(a)[i] of the Sex Discrimination Act 1984 ‘carved out’ Commonwealth-funded aged care services so that religious organisations that receive public money cannot discriminate against LGBT people accessing those services.
This was a welcome recognition both of the importance of aged care services, and of the potential vulnerability of people who require these services, especially older LGBT people many of whom have been subject to a lifetime of homophobic, biphobic and transphobic discrimination.
Unfortunately, the same protection was not extended to LGBT employees and other staff in these services (see section 37(2)(b)[ii]).
This is wrong in principle for two main reasons.
First, whether a person is able to perform their duties as an aged care worker is unrelated to, and independent of, their sexual orientation and/or gender identity.
People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.
Second, it is completely unacceptable that taxpayers’ money should be spent subsidising such discrimination. The purpose of public funding of aged care services is to ensure older Australians have access to quality services which are able to meet their needs – it is not supposed to pay for religious organisations to impose their anti-LGBT views on the aged care workforce.
For both of these reasons, I believe the ‘carve-out’ in the Sex Discrimination Act 1984 which protects LGBT people accessing aged care services should be extended to cover LGBT employees too.
The special privilege allowing religious aged care services to discriminate in employment on the basis of sexual orientation and gender identity is wrong in practice as well, and it is here that this discrimination most clearly relates to the Royal Commission’s Terms of Reference.
(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response;
(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including:
i. in the context of changing demographics and preferences, in particular people’s desire to remain living at home as they age; and
ii. in remote, rural and regional Australia;
(d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe;
The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.
This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants,[iii] for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.
This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.
And this impact will likely exist for as long as the general exception[iv] in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.
Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.
There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.
People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.
The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.
Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.
LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.
There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.
LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).
Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.
The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.
Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.
For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).
However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.
Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.
In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.
There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.
Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.
Recommendation: The Royal Commission into Aged Care should call for amendment to section 37(2) of the Sex Discrimination Act 1984 (Cth) to remove the ability of religious aged care services to discriminate against employees on the basis of their sexual orientation and gender identity.
Thank you in advance for taking this submission into consideration as part of the Royal Commission. If you would like further information, please do not hesitate to contact me at the details provided below.
Commonwealth Minister for Aged Care Ken Wyatt.
[i] 37(2) provides that “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 Commonwealth-funded aged care; and
(b) the act or practice is not connected with the employment of persons to provide that care.”
[iii] I am not suggesting that all LGBT applicants are highly-qualified, some will obviously not be (in the same way some cisgender heterosexual applicants will not), but excluding highly-qualified applicants of any background reduces both the number and the depth of qualified applicants to choose from.
[iv] Section 37(1)(d) provides that “Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”