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Summary of Web Comments - Consultation on protection from discrimination on the basis of sexual orientation, sex and/or gender identity (2011)

Summary of Web Comments

Consultation regarding

protection from discrimination on the basis of sexual orientation, sex and/or

gender identity

January 2011


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Introduction

The Australian Human Rights Commission launched its consultation regarding

protection from discrimination on the basis of sexual orientation, sex and/or

gender identity on 1 October 2010.

An internet-based questionnaire was provided on the Commission’s

website to facilitate public contribution to the consultation. By 26 November

2010, we received comments from 51 individuals.

Many participants requested that their identity be withheld. A few

participants requested that their comments be treated as confidential. Some

participants chose not to respond to all of the questions listed.

In order to respect the privacy of participants and reflect the diversity of

comments received, a summary or responses provided to each question is provided

below.

1 What benefit would there be in federal law

prohibiting discrimination on the basis of sexual orientation and sex and/or

gender identity?

The overwhelming majority of comments received supported the need for federal

laws prohibiting discrimination on the basis of sexual orientation and sex

and/or gender identity. Many participants commented that such laws would have an

important symbolic value and educational role in promoting the equality of all

people regardless of their sexual orientation or their sex and/or gender

identity.

For example, one participant noted:

Most importantly, [discrimination law] serves as an educational guide which

says to all members of Australian society that discrimination on the basis of

actual or perceived sexuality or actual or perceived gender identity is morally

wrong, unethical, illegal, un-Australian and not condoned by the Australian

government and Australian people. Secondly, it fills the gaps which are not

covered by state and territory legislation, and which have been exploited by

those who wish to discriminate.

Comment 2

Many participants commented that a person should not be discriminated on the

basis of a private matter such as sexual orientation. Many participants also

expressed the view that federal laws would create some consistency and

uniformity in protection from discrimination on these grounds across Australia.

Some participants commented that federal laws were required to prevent

discrimination by Commonwealth agencies in the provision of services and

employment. Participants argued that such laws would protect:

  • job security
  • access to education.

Other benefits raised included:

  • consistency throughout Australia in laws relating to changing sex on

    identity documents

  • improvement of the mental health of LGBTI people as a result of reduced

    discrimination.

One participant noted that federal laws could be

used to bring about an equal age of consent for sex in Queensland.

Some participants noted the importance of ensuring adequate protection of

freedom of religion, for example:

I see some benefits, but there has to be allowance within any legal framework

for certain organised groups, primarily religious groups, to discriminate in

matters of employment where the group’s deeply held philosophical and

theological position is reflected in a policy.

Comment 128

I see the benefit as negative – that is it would be a detriment –

unless there is companion legislation which fully and comprehensively legislates

for and protects the freedoms of religion and speech which are contained in the

International Covenant of Civil and Political Rights which Australia has both

signed and ratified; and such legislation makes clear beyond doubt that the

freedoms of religion and speech are fundamental rights which may not be abridged

or restricted in any way by anti-discrimination legislation.

Comment 32

Several participants argued that there would be little or no benefit to

protections in this area. Some people felt that there would be no benefit

because existing laws adequately protected people from discrimination on these

grounds.

2 What benefit would there be in federal law

prohibiting vilification and harassment on the basis of sexual orientation and

sex and/or gender identity?

Again, the majority of responses to this question indicated that there would

be an enormous benefit to protection from vilification and harassment on the

basis of sexual orientation and sex and/or gender identity. Many comments stated

that vilification or harassment on any grounds is wrong or unacceptable. For

example:

A federal law would make it clear to all Australians that vilification and

harassment on the basis of sexual orientation and sex and/or gender identity is

never acceptable.

Comment 54

It would allow people to feel safe and secure in the knowledge that they have

a right to act against vilification and harassment based on their

sexuality/gender.

Comment 79

People, especially the younger parts of the community, would not have to

worry that they are going to be judged for existing. They will have confirmation

that there is nothing wrong with them and that they should not have to put up

with things like harassment.

Comment 69

Several participants raised concerns about the ambiguity of anti-vilification

laws and expressed that the law should clearly define what constitutes

vilification or harassment.

Vilification of any person or group is an ugly thing but the law should

carefully define what constitutes slander / vilification. Religious groups also

have reason, on occasions, to speak about and even against the teachings of

other religious groups in society. Anti-harassment and anti-vilification laws

should not prevent the free exchange of dialogue on such matters.

Comment 128

Some participants felt that there should be minimal exceptions to

vilification or harassment, reflecting that this was perceived to be a more

serious form of discrimination.

A few participants commented that there would be some benefit to protections

against vilification or harassment provided freedom of religion and speech were

also adequately protected. Others felt that there would be little or no point to

such protection, with some people commenting that adequate protections already

existed.

3 Can you provide examples of situations where

federal protections from discrimination on the basis of sexual orientation, sex

and/or gender identity are needed because state and territory laws do not

provide adequate protections

This question prompted a wide range of responses. Examples of situations

where participants felt that state and territory laws did not provide adequate

protections included:

  • the lack of protection against vilification and harassment under Western

    Australian law

  • the inability to take action against a facility that will not provide access

    to appropriate toilets

  • inadequate protection in any state from discrimination on the basis of

    gender identity.

Some participants also provided examples of the

discriminatory operation of state laws, including:

  • the lack of recognition of non-birth mothers in some states leading to

    lesbian couples travelling interstate to give birth

  • the distinction in the age at which consensual sex is permitted for same-sex

    attracted men in Queensland, compared to the age of consent that applies to

    heterosexual couples

  • the difficulty in changing sex on official documents, including the

    requirement in some states that a person who has changed their sex must divorce

    their spouse in order to change their legal sex on official documents

  • the prohibition on same-sex adoption in some states.

Some

participants also raised concerns about the operation of exemptions in state

laws:

  • one participant argued that the exemption of not-for-profit organisations

    from Queensland discrimination law was wrong

  • some participants argued that Victoria’s anti-discrimination laws

    provided exemptions to religious groups which are too wide

  • others argued that Victoria’s laws did not provide enough protection

    to religious groups, referring to the Cobaw Community Health Services Ltd v

    Christian Youth Camps Ltd & Anor case as an example.

Many

people supported the notion of consistent laws across Australia rather than the

widely diverse laws which currently exist in each state and territory.

Participants felt that inconsistent laws create confusion and uncertainty about

what laws apply.

Many states are behind on this issue with regards to legislation, and if they

have legislation in place, it needs amending.

Comment 79

4 Have you experienced discrimination because of your

sexual orientation or sex and/or gender identity for which there is no legal

protection?

In response to this question, some participants answered yes or no without

elaborating further. Others chose not to provide a response to this

question.

Examples of discrimination provided by participants included:

  • discrimination in employment including not getting jobs, being dismissed or

    forced to leave employment

  • being unable to use female bathrooms in some workplaces
  • being refused rental accommodation.

One participant gave the

example of discrimination occurring as a consequence of not being able to change

identity documents:

I was issued with an infringement notice by the WA Police, which listed my

sex as ‘male’ – even though I am clearly not. Due to the legal

requirements behind receiving a Gender Recognition Certificate including strict

surgical requirement, leading to having my birth certificate modified, I have so

far been banned from making this important change as I have not undergone the

appropriate surgery.

Comment 98

Some participants described the impact this form of discrimination had on

them personally:

Yes. I have been called ‘poofter’ from the early days in high

school because I was small, weak and studious. I drew into a shell and did

nothing but study. The thought of talking to anyone about my feelings, let alone

complaining would have been laughable. I was often physically attacked at school

as well. I am surprised I got through those years. I did so by retreating

inwards, not even attempting to try any form of sex, shying off when friends

started coupling, focussing on my work and study, hiding in the library at lunch

time to avoid being mocked and bullied. How many more young people are less

resilient than I was?

Comment 7

Another participant described a more positive experience:-

Not as yet on a personal basis, I’ve only accepted my situation/life in

the last two years and I have a good employer. Things are a lot better in public

these days too but I’m sure that one day it will happen to me for sure, I

just don’t know when as I do live a simple life.

Comment 22

A bystander who witnessed discrimination on these grounds noted their

concerns:

No, I am heterosexual but I have witnessed others being treated unfairly

based on their sexuality. The problem is ‘policing’ – because

we don’t have strong leadership on what is right and wrong –

teachers, police etc can be discriminatory.

Comment 15

5 Have you experienced vilification or harassment

because of your sexual orientation or sex and/or gender identity for which there

is no legal protection?

Again, many people described their personal experiences with vilification and

harassment whilst others chose not to elaborate on this question. Some people

gave the same answer as for Question 4.

Examples of vilification or harassment provided by participants included:

  • bullying and harassment at schools and universities
  • ‘verbal abuse from some religious zealots’
  • homophobic comments made by customers in a workplace.

For

example, one participant commented:

Throughout my time in high school I experienced constant harassment because

of my gender identity. I was frequently made fun of in class, often by teachers.

Students refused to use my chosen name, instead referring to me by my birth name

and using female pronouns; teachers did not punish them even though it was quite

clear that the harassment was deliberate. Students would play pornography on

their phones/iPods and show it to me during class. Many classmates consistently

asked me unnecessary and invasive questions about my sex life and preferred

sexual practices. Food was thrown at me on a number of occasions. I was pushed,

spat on and hit... None of the people who bullied me were ever punished.

Comment 70

An intersex participant commented:

I am “outed” on a daily basis by people who think they know my

“secret” sometimes they then proceed to refuse service, use

inappropriate pronouns or otherwise be rude. The fundamental harassment is

Intersexphobic, transphobic and homophobic at once because I am thought to be

lesbian when with my partner. When using the airports I am routinely scanned for

explosive residue and have my bags searched. My partner who often accompanies me

and is frequently standing next to me has never been scanned or searched

once.

Comment 8

Another participant commented that although they hadn’t personally

experienced vilification or harassment, they would like gay/lesbian friends to

have that same freedom.

6 What terminology should be used in federal

anti-discrimination legislation if protection from discrimination on the basis

of sexual orientation is to be included?

The most common response to question 6 was to express support for the use of

the term ‘sexual orientation’.

The majority of participants suggested that broad, all inclusive terms should

be used, rather than the categorisation of specific subgroups.

One participant advocated for non-specific terminology, which did not use

categorising words such as gay, lesbian, transgender, intersex and queer,

stating:

It would be ideal for the legislation to encompass all human beings and the

entire spectrums of both sexuality and gender, and any wording used should

reflect this.

Comment 79

Another participant noted:

I think broad terms like "sexual orientation and/or gender identity" are

helpful because they are understood by most people and not just those who are

already immersed in the discourse of sex and gender rights.

Comment 54

Many participants were opposed to any terminology which implied that sexual

orientation is a choice or preference.

A few participants suggested the use of the term ‘same-sex

attracted’.

Several participants also suggested that legislation should protect people

for both ‘actual’ and ‘perceived’ sexual orientation.

One participant asserted that an individual’s actual sexuality or gender

may differ from another person’s perceptions of their sexuality or gender

(Comment 105). Another participant suggested the term ‘actual or perceived

non-heterosexuality’.

Two participants were opposed to the use of the term ‘sexual

orientation’. One asserted that the term ‘sexual orientation’

implies that everyone has a distinct orientation. Use of this term will thus

pressure people to “fit the template” and thus should not be used

(Comment 123). Another participant preferred the term ‘sexuality’

instead of ‘sexual orientation’.

Finally, one participant argued that there needs to be a clear distinction

between discrimination of the basis of sexuality, sexual formation and gender

expression in order to adequately recognise the distinct legal and human rights

of all Australians (Comment 118).

7 What terminology should be used in federal

anti-discrimination legislation if protection from discrimination on the basis

of sex and/or gender identity is to be included?

Most participants opposed the use of terms which emphasised choice such as

‘chosen gender’ and preferred all inclusive terms such as ‘sex

and gender identity’ and ‘sex and gender diverse’. There was

also some support for using the term ‘gender expression’ as well as

‘gender identity’.

One participant argued that legislation ‘should protect all sex and

gender diverse people regardless of how they personally identify’.

One participant asserted that legislation should read as follows:

It is illegal to discriminate against a person or persons on basis of their

gender identity, gender presentation, gender history, level of physical

transition, level of social transition or legal sex.

Comment 70

Several submissions asserted that legislation should clearly prohibit

discrimination on the grounds of both sex and gender. For example, Comment 75

defines sex as the ‘physical characteristics of a person's reproductive

organs’ and gender as ‘the emotional, behavioural, and cultural

manifestations of masculine and feminine and the spectrum surrounding those

terms in one person’.

One participant suggested that the use of the phrase ‘diversity in

sexual formation or expression’ would avoid the controversy and potential

for error associated with the terms ‘transgender’,

‘transexual/ism’ and ‘intersex’.(Comment 118).

7a What are the advantages or disadvantages of the

terms used in state and territory laws, including: gender identity; chosen

gender; gender history; a gender reassigned person; or a recognised transgender

person; or transexuality?

Several participants argued that common terminology should be used in State

and Territory laws. Comments included:

Some people do not feel that they fit within some of these terms, a term that

can be used for all laws would be best practice.

Comment 6

The major disadvantage is that there is no standard or common law between

most states. A person can be discriminated [against] in one state for reasons

that another state disallows.

Comment 98

Another participant commented that the terms currently used in State and

Territory laws are ‘conflicting and confusing’ and ‘outdated,

vague, misleading and discriminating’ (Comment 118).

The term ‘chosen gender’ was criticised by several participants

for implying that people have a choice (Comments 51, 58, 69, 70, 79):

The disadvantages of including the word ‘chosen’ in ‘chosen

gender’ are that it is implied that these are choices for all people, and

therefore to not be discriminated against is an extraordinary privilege not a

right.

Comment 75

Another participant expressed opposition to the use of the term

‘transsexuality’:

I personally dislike transsexuality as to me it belittles the person and

makes them sound like a porn star. Transgender to me personally is more

descriptive of the person.

Comment 53

A few people were opposed to using specific categories and preferred all

inclusive phrases. One participant asserted that categories ‘reinforce the

notion that certain sexual and gender orientations are still considered

“other” when held up against heterosexuality’ (Comment

79).

Several submissions supported the use of the term ‘gender

identity’.

7b Should protection from discrimination be

provided if a person has or appears to have the characteristics of any

gender?

The majority of participants asserted that protection from discrimination

should be provided if a person has or appears to have the characteristics of any

gender. There was a lot of support for protection against discrimination on the

basis of actual or perceived gender and the use of broad terminology (see

Comment 105).

For example, one participant responded:

Absolutely. There is a huge continuum of gender and how people express their

gender. It cannot be defined as one or the other.

Comment 12

Another participant asserted:

People should have the right to present as whatever gender they chose without

fear of discrimination.

Comment 54

Only one submission was opposed to providing such protection. That

participant maintained that ‘it is our right to discriminate’ and

that employees should be able to discriminate (Comment 11).

8 What terminology should be used to ensure that

people who identify as intersex are protected from discrimination in federal

law? Should the term intersex be used? Should protection from discrimination on

the basis of sex include people who are of indeterminate sex?

The majority of participants who responded supported the use of the word

‘intersex’. Several comments also supported the use of the term

‘indeterminate sex’.

Examples of comments provided include:

Intersex is the only accurate term that describes individuals who have

differences of sex anatomy without perceiving those differences as disability or

illness. Intersex differences themselves do not disable a person or cause any

illness. The single most damaging issue for Intersex is social attitudes to our

differences.

Comment 8

The laws should DEFINITELY protect those who are of 'indeterminate sex'; all

humans deserve equality.

Comment 79

One comment opposed the use of the terms ‘intersex’ and

‘indeterminate sex’ preferring instead the term ‘diversity in

sexual formation’, ‘defined broadly to include transsexualism as

well as the other diverse manifestations of intersex (Comment 118).

Many participants declined to offer an opinion as they are not themselves

intersex.

9 What special measures designed to benefit specific

groups based on sexual orientation and sex and/or gender identity should be

allowed by federal anti-discrimination law?

Some comments supported special measures designed specifically to redress

discrimination against a particular group of people. For example one participant

commented ‘while inequality exists between sexes, genders and sexual

orientations, then measures seeking to improve the situations of those affected

are not discriminatory’ (Comment 75).

Some participants responded to this question by commenting on exemptions. For

example, one participant suggested the exemptions be decided on a case-by-case

basis by application only:

No blanket exemptions. Exemptions by application only, and public

notification of those exemptions provided by those who receive any exemptions.

Comment 92

Other participants responded to this question by discussing general

initiatives that they felt would address discrimination on the basis of sexual

orientation and sex and/or gender identity, for example providing education,

supporting people in employment, or supporting people through transition

processes.

A few participants stated the view that special measures were not necessary

as there is already adequate protection in anti-discrimination laws.

10 What other actions would you like to see the

Australian Government take to better protect and promote the rights of LGBTI

people in Australia?

An overwhelming number of participants commented that they would like to see

education about LGBTI issues in schools, and workplaces and provided through the

media:

Funding and proactive efforts into putting constructive education into

schools and into the mass media, about gender and sex diversity and sexual

orientation. Discrimination starts at home and helping peoples’

understanding and acknowledgment of it will also help reduce discrimination in

current and future generations of Australians.

Comment 98

An equally large number of participants stated that the Marriage Act

1961 (Cth) should be amended so that it no longer defines marriage as

‘the union of a man and a woman to the exclusion of all others,

voluntarily entered into for life’. Some participants also argued for the

establishment of a Commonwealth civil, domestic or de facto partner registration

scheme.

Other suggestions included:

  • allowing people who remain married to change their legal sex on official

    documents

  • government funding for sex affirmation treatment and medical treatment for

    intersex people

  • increased funding for organisations working in the LGBTI community

  • the creation of a specific department within the Australian Human Rights

    Commission for sexual orientation, sex and gender identity

  • the creation of a ministerial position to address these issues

  • the provision of a ‘not disclosed/ applicable’ option on forms

    that ask for information about a person’s sex

  • federal legislation providing for equal rights in adoption, surrogacy, IVF,

    and taxation

  • amending the federal Sex Discrimination Act to include protection on the

    basis of ‘relationship status’ rather than ‘marital

    status’

  • removal of government funding from organisations that discriminate against

    LGBTI people.

A small number of comments were opposed to any

additional actions to protect and promote LGBTI rights. A few comments noted

that any other actions to promote rights should be balanced with freedom of

religion.