Section 12 - Other actions that could be taken by the Australian Government to protect LGBTI people in Australia - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)
Addressing sexual orientation
and sex and/or
gender identity
discrimination
Consultation Report
2011
Section 12 - Other actions that
could be taken by the Australian Government to protect LGBTI people in
Australia
- 12.1 Public education
- 12.2 Health services
- 12.3 Marriage equality
- 12.4 Government funding for support services
- 12.5 National LGBTI representative
- 12.6 Identity on official documents and Sex Files
- 12.7 Aged care
- 12.8 Prisons
- 12.9 Adoption rights
- 12.10 Other suggestions
The consultation received a number of suggestions about other ways in which
the Australian Government could protect the human rights of LGBTI people in
Australia. Many participants argued that while anti-discrimination legislation
is an important step towards equality, it is essential that it is accompanied by
other actions. Suggestions were often informed by personal experiences of
discrimination.
The consultation received suggestions on the following issues which are
discussed further below:
- public education regarding issues facing LGBTI people
- health services
- marriage equality
- government funding for support services
- national LGBTI representative
- identity on official documents and Sex Files
- aged care
- prisons
- adoption rights.
12.1 Public
education
The majority of the comments supporting new federal discrimination
protections also argued that discrimination and vilification experienced on the
basis of sexual orientation or sex and/or gender identity could be reduced
through public education about these
issues.[246] For example the
National LGBTI Health Alliance argued that:
Legislation is crucial but will not change ‘hearts and minds’.
Federal antidiscrimination legislation must be accompanied by a targeted
national action program that includes community education to reduce transphobia,
homophobia and discrimination against intersex people and to empower LGBTI
people to assert their rights and respond effectively to
discrimination.[247]
They added that education programs should be developed in conjunction with
LGBTI community
organisations.[248]
Many participants called for a federally funded public education campaign as
well as the development of education programmes specifically for schools,
workplaces and the public
sector.[249] For example:
I would like to see efforts made to change community attitudes towards LGBTI
people, especially in workplaces and schools. Attitudinal change is difficult to
bring about, but without increased efforts to decrease discrimination,
harassment and vilification there will be no decrease in the incidence of
depression, drug abuse, self-harm and suicide among LGBTI
people.[250]
Participants also expressed the need to ensure that all LGBTI people are
informed of and understand their rights and the appropriate avenues available to
them if they have been discriminated
against.[251]
The consultation heard that young LGBTI people face distinct challenges,
especially at school.[252] Comments suggested that the new national curriculum for Australian schools
should include education about all forms of sexual orientation and sex and/or
gender identity. For example, comments made by roundtable participants
included:
Education should be started early that there are males and females and some
people do not fit into those categories. Discrimination is learnt. When I was in
sex education in high school we were taught that there were males and females.
It was confusing as I was obviously not male or
female.[253]
Children are not taught about the occurrence of intersex births and neither
are they taught about the occurrence of intersex, sex and/or gender diverse
people. This ill-prepares children for the real world where they may encounter
such people. Children themselves who are intersex, sex and/or gender diverse are
marginalised in such circumstances and made to feel shame about [the] way they
are.[254]
A number of organisations stressed the importance of education on the needs
of trans and intersex people for health and community service
providers.[255] The current lack
of understanding in this field was reported to be a barrier to accessing health
care:
The practical result is that some sex and gender diverse people in the ACT
either do not seek medical treatment, or choose not disclose their full medical
history for fear of facing potential discrimination from ill-informed medical
practitioners. This raises serious concerns on an individual level but also from
the perspective of the need to protect and respect the human rights of all
persons in Australia
today.[256]
12.2 Health
services
A number of participants raised concerns about the lack of access to
appropriate medical care, especially for trans and intersex
people.[257] For example, the WA
Gender Project suggested that specialist medical centres for transsexual and
intersex people should be established in each state and
territory.[258]
Participants also raised concerns about medical professionals overlooking
trans and intersex people for conditions that are generally understood to affect
either men or women exclusively, such as ovarian cancer and prostate cancer. For
example, the consultation heard:
We would like to avoid replication here of the well-known case of an American
female-to-male, Robert Eades, who died of ovarian cancer because doctors refused
to treat him for an ‘inappropriate’ disease. We suggest that any
medical procedure recommended by an authorised medical professional should be
recognised as eligible for treatment, and the gender restrictions be removed
from the Medicare tables.[259]
A trans person who was registered male at birth and then transitioned legally
to female will still have a prostate. However, Medicare only allows men to
access services to do with prostate issues. Therefore those people cannot gain
prostate screening or be entitled to surgery or treatment with regard to benign
prostate hyperplasia or prostate
cancer.[260]
Several participants advocated for better access to gender affirmation
treatment.[261] Currently such
costs are high and there are long waiting lists due to the lack of experienced
doctors in this area. Some participants maintained that Medicare should cover
the costs of gender affirmation treatment while others suggested low interest
loans should be available.[262] For example, the Gender Centre argued that:
On the larger question of access to male-to-female affirmation (or
reassignment) surgery, the greatest impediments are the bottleneck caused by
their being only two surgeons practicing this surgery on a regular basis in
Australia, and the excessive cost for the procedures ($25,000-$30,000 for
surgery, without the added costs for electrolysis, hormone therapy and at least
two years of psychiatric
preparation).[263]
Some participants advocated for access to medical and surgical treatment for
fully consenting young people with parental consent:
Australian adolescents are being denied timely access to critical medical
treatment - with life-threatening and degrading consequences - and families are
in distress - because of the effects of the current erroneous interpretation of
Marion's Case, expressed in the cases of Re A and Re Alex, which incorrectly
extended the definition of "Special Medical Procedure" to therapeutic medical
treatment for young people who experienced intersex conditions; including
transsexualism.[264]
Some participants also called for the cessation of non-therapeutic medical
interventions on non-consenting intersex
children.[265] For example:
[Organisation Intersex International Australia] affirms that the true sex of
the child is determined by their own inner psychological perceptions and that
the right of individual intersex persons to affirm their own sex identity
without medical or governmental interference should be a basic human
right.[266]
12.3 Marriage
equality
The majority of consultation participants who favoured new
anti-discrimination protections also expressed their support for marriage
equality in Australia. Specifically, participants argued that subsection 5(1) of
the Marriage Act 1961 (Cth)[267] should be amended so
that all couples are able to
marry.[268] Comments included:
The exclusion of same-sex couples from the legal definition of
‘marriage’ is key to their experience of discrimination and in
contravention of Australia’s obligations under Article 2 and 26 of the
International Covenant on Civil and Political Rights – Freedom from
Discrimination. Amnesty International calls on the Australian Government to
amend the Marriage Act 1961 to end discrimination, by allowing the marriage of
Australian same-sex couples and permit the recognition of those same-sex married
couples who formally united in marriage
overseas.[269]
Legalise marriage, and not just for LGBTI people, but for ALL people,
regardless of whether they are male, female, both, or
neither.[270]
I support gay marriage. Why? Because it is an act of discrimination; it is
discrimination pure and unadulterated. I would argue that the refusal to amend
the Marriage Act is an act of discrimination. It is just as much discrimination
as was a sign in a South African park or beach saying whites
only.[271]
The Kingsford Legal Centre argued that marriage has a particular significance
in our community and thus equal legal recognition to non-heterosexual couples is
not sufficient:
While many may argue that providing the same legal recognition to same sex
couples as opposite sex de facto couples is sufficient, we would argue this is
not sufficient. Marriage has a particular significance in our community. Across
all religions and belief systems, marriage is the way in which committed
relationships have been recognised. For this reason, committed relationships
between people in same sex relationships should also be recognised through
marriage. There is a social meaning to marriage which does not equate to de
facto relationship
recognition.[272]
Participants argued that it would be a contradiction to provide federal
protection from discrimination on the basis of sexual orientation and sex and/or
gender identity while federal laws continue to
discriminate.[273]
Organisation Intersex International argued that marriage equality would
remove discrimination against intersex people who are currently forced to be
legally a man or a woman in order to marry:
In the matter of marriage rights if the law is changed to allow for same sex
marriage people who are Intersex will still not be able to marry unless they
agree to conform to male or female sex anatomies and effectively have their
Intersex erased.[274]
Another participant noted:
Why should I be forced to take on a gender identity that I am not? That is
like telling a female that she has to identify as a male in order to marry. I
identify (quite rightly too) as Intersex. Why should I have to change my gender
to marry?[275]
A number of comments expressed opposition to marriage equality asserting that
it is inconsistent with religious
beliefs.[276] For example, the
Anglican Church Diocese of Sydney noted:
We commend the government for the introduction of legislative changes to
offer privileges and protection to same-sex couples. But we do object to
same-sex relationships claiming the name of the unique relationship which is
marriage. We do not doubt that many of these relationships are committed,
long-term and loving, but the fact is that they lack some of the fundamental
characteristics that make marriage ‘marriage’, and thus should not
claim this term to refer to their
relationship.[277]
However, not all people were opposed to marriage equality on the grounds of
their religious beliefs. One participant noted:
Despite the fact that I am a full member of the Uniting Church of Australia
... I fully support equality under the law for LGBTI people including the right
to marry both legally and within the
church.[278]
12.4 Government
funding for support services
A number of participants argued that there should be more funding for
organisations that provide support services to LGBTI people. For example:
There should be ongoing funding for LGBTI support services such as telephone
support lines and health
services.[279]
Funding for organisations to provide direct support for intersex, trans and
other sex and gender diverse individuals and their partners, children, families
and work colleagues. At a minimum there should be one fully funded Gender Centre
to provide services to sex and gender diverse people in each capital
city.[280]
Some participants specifically argued for funding to community legal centres
to ensure that people know their legal rights.
Increased funding to Community Legal Centres is also imperative to enable
advice and representation for people complaining of discrimination and public
interest-based organisations should be given standing to assist people make
complaints under Federal anti-discrimination
law.[281]
12.5 National LGBTI
representative
Several comments called for a national representative responsible for sexual
orientation and sex and/or gender identity. Some participants suggested the
appointment of a federal
minister,[282] while others
suggested the appointment of a Commissioner within the
Commission.[283]
Participants argued a Commissioner should be responsible for increasing
education and awareness of LGBTI issues in the wider community, monitoring human
rights abuses, discrimination and vilification, research, legislative reform and
facilitating outreach
services.[284] The National LGBTI
Health Alliance also noted that there is no government-funded peak body for
LGBTI people:
The Australian Government currently provides support to various equity
groups, such as people with a disability, young people, seniors, women,
culturally and linguistically diverse people, Aboriginal and Torres Strait
Islander people, and people in Regional and Rural areas. Such support is
provided through a Minister/Parliamentary Secretary, an Advisory Group,
Departmental Unit, National Strategy/Plan and a funded NGO peak body. None of
this government support is currently provided to people of diverse sexual
orientations, and sex and/or gender diverse people. The National LGBTI Health
Alliance is the peak body of organisations working to promote the health and
wellbeing of LGBTI people. It is funded entirely from community raised money.
Government support should be made available to the LGBTI community as a matter
of extreme urgency.[285]
12.6 Identity on
official documents and Sex Files
A significant number of participants expressed concern about the requirements
for changing sex on legal documents.
Issues relating to changing the legal recognition of sex in documents and
government records are discussed in detail in the Commission’s 2009 paper Sex Files.[286] Many
participants raised issues that were considered by Sex Files and called
on the Federal Government to implement the recommendations made in that
report.[287]
Participants were particularly concerned about the requirement that a person
must have had sex affirmation
surgery[288] and the requirement
that a person not be married[289] in order for them to change their legal sex.
The consequences of a person not being able to change their legal sex are
considerable. A number of people raised issues of not being identified as the
correct sex on passports, flight boarding passes, in hospitals, and by
government agencies including Centrelink and Medicare. One person commented:
I changed my name more than ten years ago, but the trade certificate that I
obtained was in my previous (female) name. I contacted the institution and asked
that they re-issue the document in my new (male) name but they refused to do so.
When I contacted the NSW Anti Discrimination Board I was advised that because
the provision of a certificate was not the provision of a service, that there
was nothing I could do. This has meant that the only way that I can verify that
I’ve got any qualifications for a new job is to ‘out’ myself
at the interview.[290]
Intersex people reported similar challenges as they are unable to indicate
legally that they are intersex.
More times tha[n] I can count I have encountered various forms that do not
allow me to correctly indicate that I am Intersex. Some of these go on to
threaten punitive action for not providing correct information. This is quite
stressful as I am continually not given the option to tell the truth, and am
treated [differently] if I don’t tell the truth. It wears you down after a
while.[291]
12.7 Aged
care
Several community organisations maintained that work to increase awareness of
LGBTI issues needs to be done in the aged care
sector.[292] Some participants
favoured LGBTI specific aged care services and facilities, while others
advocated for educating mainstream service
providers.[293]
Indeed, the transition process taking place towards Federal responsibility
for aged care provides a significant window of opportunity for the [Australian
Human Rights Commission] and the Federal government to ensure maximum protection
from discrimination and well targeted education around certainty and safety for
GLBTI aged care consumers.[294]
GRAI (GLBTI Retirement Association Incorporated) advocated for the following
specific measures:
- aged care sector training and performance monitoring be modified to
specifically address GLBTI needs
- GLBTI issues be included in all relevant training packages and best practice
performance criteria
- the promotion of ‘safe haven’ reporting mechanisms, for example
someone within a care establishment clearly identified as GLBTI friendly and
informed.[295]
12.8 Prisons
Some participants raised concerns about the treatment of trans and intersex
people in prisons. One participant commented:
People who happen to be transgendered and who happen to be imprisoned
(possibly on some unrelated matter) should not be incarcerated with groups of
whatever gender they happened to be at birth. There should be a consultation
process to determine where they are held and their safety should be the foremost
concern in this process.[296]
The Tasmanian Council for Sex and Gender Diverse People argued that a trans
or intersex person should not be forced to be incarcerated with people who are
of the same sex as they were at birth or forced into isolation:
Trans people should be put in prisons of the gender they are presenting as.
Current policies also tends to require that they be put into isolation and are
not allowed to mix with other prisoners. I can see that in some situations that
would be for their protection. However, that should be their choice. They should
not be treated differently from other
prisoners.[297]
12.9 Adoption
rights
Some participants advocated for equality in adoption, surrogacy and
IVF.[298] For example, Amnesty
International Australia argued that:
[a]doption by same-sex parents is not contrary to a child’s best
interests. There is no evidence to suggest that a child would be harmed by being
raised by same-sex parents.[299]
The Tasmanian Council for Sex and Gender Diverse People recommended that
parenting and adoption laws for same sex couples should be equal to the laws
that apply to heterosexual and married
couples.[300]
12.10 Other
suggestions
A wide range of additional suggestions were also made by participants, such
as to:
- include the right to equality in our Constitution or a federal human rights
Act[301]
- implement appropriate policies in all Commonwealth agencies to support LGBTI
people[302]
- ensure a commitment by the public sector to employ and support LGBTI
people[303]
- include LGBTI status in the census so the government cannot dismiss the
LGBTI community as only 2% of the
population[304]
- appoint a teacher in every school as a ‘safe teacher’ who can
support young people who are being
bullied[305]
- provide ongoing training and support to increase understanding about rainbow
families in family mediation and child support services
etc[306]
- remove discrimination by providing equal age of consent to heterosexual and
homosexual acts in
Queensland[307]
- remove discrimination in employment for sex and/or gender diverse people
wanting to work with
children[308]
- eliminate the ‘homosexual advance defence’ in all Australian
jurisdictions[309]
- allow intersex people to play sport competitively as a male or female,
depending on what their physical physique is most closely associated
with.[310]
[246] See, for example,
Tasmanian Council for Sexual and Gender Diverse People, Comment 33; {Also}
Foundation, Comment 84; Freedom! Gender Identity Association, Comment 90;
Redfern Legal Centre, Comment 91; South Australian Equal Opportunity Commission,
Comment 110, Victorian Equal Opportunity and Human Rights Commission, Comment
121.
[247] National LGBTI
Health Alliance, Comment 112, p 1.
[248] See above, p
10.
[249] See Name withheld,
Comment 9; Tasmanian Council for Sexual and Gender Diverse People, Comment 33;
Name withheld, Comment 51; {Also} Foundation, Comment 84; NSW Gay and Lesbian
Rights Lobby, Comment 94; Hawkesbury Nepean Community Legal Centre, Comment
97.
[250] Name withheld,
Comment 9, p 3.
[251] See
{Also} Foundation. Comment 84; Hawkesbury Nepean Community Legal Centre, Comment
97; Youth Affairs Council of Victoria, Comment
152.
[252] Youth Affairs
Council of Victoria, Comment 152, p
9.
[253] Sydney roundtable on
sex and/or gender identity, 28 October
2010.
[254] Sex and Gender
Education Australia and Australian Health and Education Centre, Comment 73,
p 15.
[255] Freedom!
Gender Identity Association, Comment 90; National LGBTI Health Alliance, Comment
112.
[256] Fiona David and
Peter Bailey, Comment 147, p
3.
[257] See, for example, The
Gender Centre, Comment 48; Redfern Legal Centre, Comment 91; WA Gender Project,
Comment 125.
[258] WA Gender
Project, Comment 125, p
11.
[259] The Gender Centre,
Comment 48, p 3.
[260] Sex and
Gender Education Australia and Australian Health and Education Centre, Comment
73, p 13.
[261] See, for
example, Lara Kacelnik, Comment 58; Name withheld, Comment 120; Rachel Wallbank,
Comment 122; Inner City Legal Centre, Comment
142.
[262] Melbourne roundtable
on sex and/or gender identity, 9 November
2010.
[263] The Gender Centre,
Comment 48, p 4.
[264] Rachel
Wallbank, Comment 118, p 4. See also A Gender Agenda, Comment 107, p
24.
[265] See, for example,
Gina Wilson, Comment 8; Organisation Intersex International, Comment 82;
Freedom! Gender Identity Association, Comment 90; National LGBTI Health
Alliance, Comment 112; Inner City Legal Centre, Comment 142; A Gender Agenda,
Comment 107.
[266] Organisation
Intersex International, Comment 82, p 4. See also Inner City Legal Centre,
Comment 142.
[267] Marriage
Act 1961 (Cth), s 5, amended by the Marriage Amendment Act 2004 (Cth). The Family Law Act 1975 (Cth) contains a similar
version of marriage, s
43(1)(a).
[268] See, for
example, David Chad, Comment 5; Dr Paul Howat, Comment 7; Gina Wilson, Comment
8; Julie Webster, Comment 15; Queensland Association for Healthy Communities,
Comment 43; Sally McMaster, Comment 52; Lara Kacelnik, Comment 58; Name
withheld, Comment 68; Name withheld, Comment 69; OUTthere, Comment 72; Name
withheld, Comment 75; Name withheld, Comment 79; Mark Le Gros, Comment 83; Name
withheld, Comment 85; Amnesty International Australia, Comment 89; Redfern Legal
Centre, Comment 91; NSW Gay & Lesbian Rights Lobby, Comment 94; Hawkesbury
Nepean Community Legal Centre, Comment 97; Name withheld, Comment 104;
Women’s Legal Centre (ACT & Region), Comment 106; Anti-Discrimination
Board of NSW, Comment 115; Anti-Discrimination Commission Queensland, Comment
131; Kingsford Legal Centre, Comment 149; Name withheld, Comment
136.
[269] Amnesty
International Australia, Comment 89, pp
4-5.
[270] Name withheld,
Comment 79, p 3.
[271] David
Chad, Comment 5, p 1.
[272] Kingsford Legal Centre, Comment 149, p
6.
[273] Anti-Discrimination
Board of NSW, Comment 115. See also David Chad, Comment 5; Name withheld,
Comment 75.
[274] Organisation
Intersex International, Comment 82, p
7.
[275] Romanadvouratrelundar
Starfield, Comment 27, p
3.
[276] Tasmanian Baptists,
Comment 101; Organisation of Rabbis Australasia, Comment 100; Australian
Christian Lobby, Comment 87; Anglican Church Diocese of Sydney, Comment 76;
Presbyterian Church, Comment 56; Name withheld, Comment 49; Family Voice
Australia, Comment 41.
[277] Anglican Church Diocese of Sydney, Comment 76, p
2.
[278] Name withheld, Comment
136, p 1.
[279] Sydney
roundtable on sexual orientation, 28 October
2010.
[280] A Gender Agenda,
Comment 107, p 24.
[281] Hawkesbury Nepean Community Legal Centre, Comment 97, p
2.
[282] Name withheld, Comment
12.
[283] Freedom! Gender
Identity Association, Comment
90.
[284] See Gina Wilson,
Comment 8; Organisation Intersex International, Comment 82.
[285] National LGBTI Health
Alliance, Comment 112, p
10.
[286] Australian Human
Rights Commission, Sex Files: the legal recognition of sex in documents and
government records (2009). At: www.humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 25 March 2011).
[287] Above.
[288] National LGBTI
Health Alliance, Comment 112. See also Fiona David and Peter Bailey, Comment
147A; Freedom! Gender Identity Association, Comment
90.
[289] See, for example, The
Gender Centre, Comment 48; Name withheld, Comment 55; Freedom! Gender Identity
Association, Comment 90; Name withheld, Comment
120.
[290] A Gender Agenda,
Comment 107, p 15.
[291] Romanadvouratrelundar Starfield, Comment 27, p
4.
[292] See, for example,
Colleen Cartwright and Tania Lienert, Comment 31; Dr Jo Harrison, Comment 78;
Hawkesbury Nepean Community Legal Centre, Comment 97; A Gender Agenda, Comment
107; GRAI (GLBTI Retirement Association Inc), Comment
140.
[293] See, for example,
Colleen Cartwright and Tania Lienert, Comment 31; See also Dr Jo Harrison,
Comment 78.
[294] Dr Jo
Harrison, Comment 78, p
2.
[295] GRAI (GLBTI Retirement
Association Inc), Comment 140, p
3.
[296] Name withheld, Comment
54, p 2.
[297] Romanadvouratrelundar Starfield, Comment 27B, p
2.
[298] Tasmanian Council for
Sex and Gender Diverse People, Comment 33; Name withheld, Comment 79; Amnesty
International Australia, Comment 89.
[299] Amnesty International
Australia, Comment 89, p
5.
[300] Tasmanian Council for
Sex and Gender Diverse People, Comment
33.
[301] Melbourne roundtable
on sexual orientation, 9 November 2010; Name withheld, Comment 1; Women’s
Legal Centre (ACT & Region), Comment 106; Erinyes Autonomous Activist
Lesbians, Comment 143.
[302] Tasmanian Council for Sex and Gender Diverse People, Comment
33.
[303] Name withheld,
Comment 51.
[304] Melbourne
roundtable on sexual orientation, 9 November 2010.
[305] Above.
[306] Above.
[307] Freedom! Gender
Identity Association, Comment 90; Name withheld, Comment 104. See Criminal
Code 1995, ss 227, 229; See also Criminal Code Act 1899 (Qld), ss
229B, 208.
[308] See, for
example, Anti-Discrimination Act 1991 (Qld), s 28; as cited in Freedom!
Gender Identity Association, Comment 90; Romanadvouratrelundar Starfield,
Comment 27.
[309] Melbourne
roundtable on sexual orientation, 9 November 2010. For an explanation of the
Homosexual Advance Defence see Santo De Pasquale, ‘Provocation and the
Homosexual Advance Defence: The Deployment Of Culture As A Defence
Strategy’ (2002) 6 Melbourne University Law Review 110.
[310] Mark Le Gros,
Comment 83.