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Addressing sexual orientation

and sex and/or

gender identity

discrimination

Consultation Report

2011

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Section 1 - Introduction

In October 2010, the Australian Human Rights Commission (the Commission)

launched a consultation regarding the human rights of lesbian, gay, bisexual,

trans and intersex (LGBTI) people in Australia. This consultation process sought

views from affected individuals and organisations about the steps that they felt

would provide better human rights protection for LGBTI people in Australia. The

consultation focussed on the experience of discrimination on the basis of sexual

orientation and sex and/or gender identity and how protection from this kind of

discrimination could be included in federal law.

This report summarises the broad range of views heard during the

consultation.

The majority of consultation participants identified a need for greater

protection from discrimination because of the high levels of discrimination,

violence, harassment and bullying faced by LGBTI people. Unlike in state and

territory laws, there is little protection in federal law from discrimination on

the basis of sexual orientation and gender identity.

Some of the key issues identified by participants included the:

• importance of using appropriate, inclusive and empowering terminology
• benefits of having consistent and uniform laws across Australia
• benefits of having federal discrimination laws that would bind Commonwealth

  agencies

• importance of including gender identity and gender expression as protected

  grounds of discrimination

• need for government action in other areas such as health care, education,

  marriage equality, as well as reform of the requirements for changing a

  person’s legal sex.

Some participants expressed opposition to

federal protection from discrimination on the basis of sexual orientation and

sex and/or gender identity or argued for exemptions from such protections in

order to protect the right to freedom of religion and belief and the right to

freedom of expression.

This consultation report aims to inform and assist the implementation of

elements of the Human Rights Framework, announced in April

2010.^[1] The Human Rights Framework

includes commitments to:

• develop exposure draft legislation harmonising and consolidating

  Commonwealth anti-discrimination laws (discrimination law review) and

• develop a new National Action Plan on Human Rights to outline future action

  for the promotion and protection of human rights.

The implementation

of the Human Rights Framework provides a timely opportunity to consider steps

that might be taken to protect and promote the human rights of people of all

sexual orientations and sex and/or gender identities.

Importantly, in 2010 both of the major political parties affirmed their

support for the inclusion of protection from discrimination on the basis of

sexual orientation and gender identity in federal

law.^[2] The Australian Government

reaffirmed its commitment to implementing this policy in its recent appearance

before the United Nations Human Rights Council’s Universal Periodic

Review.^[3]

The Commission is pleased to provide this consultation report to assist the

Government in its consideration of how these protections might be included in

federal law, and of other steps it might take to protect and promote the human

rights of people of all sexual orientations and sex and/or gender identities.

The Asia Pacific Forum of National Human Rights Institutions (APF)

contributed to funding this project as part of its program to promote the

implementation of the Yogyakarta Principles. The Commission thanks the APF for

its financial support, which has enabled us to conduct this consultation.

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^[1] Commonwealth of Australia, Australian Human Rights Framework (2010). At: http://ag.gov.au/humanrightsframework (viewed 25 March 2011).

^[2] See

Australian Labor Party, National Platform and Constitution 2009, p 207;

‘Abbott supports anti-discrimination legislation’, Star

Observer, 25 March 2010; and Coalition response in Law Council of Australia, Federal Election 2010 Key Issues: Responses (2010); as cited in Law

Council of Australia, Comment 132, pp

13-14.

^[3] Human Rights Council, Draft report of the Working Group on the Universal Periodic Review: Australia,10th session (2011), Geneva, A/HRC/WG.6/10/L.8, pp 6-7. At: http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 25 March 2011).