Section 6 The potential benefit of federal laws protecting from discrimination and harassment on the basis of sexual orientation and sex and/or gender identity - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Re
Addressing sexual orientation
and sex and/or
gender identity
discrimination
Consultation Report
2011
Section 6 - The
potential benefit of federal laws protecting from discrimination and harassment
on the basis of sexual orientation and sex and/or gender identity
- 6.1 The potential for cultural change
- 6.2 A wider range of remedies for discrimination
- 6.3 National consistency in anti-discrimination protection
- 6.4 Concerns about legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity
The consultation invited comments on the potential benefit of federal laws
protecting people from discrimination and harassment. Overwhelmingly,
participants argued that introducing such protections would result in
significant benefits for the Australian community as a whole. A small number of
participants argued that there would be no benefit from these protections.
A large number of comments argued that the introduction of such protections
would lead to cultural change in Australia by sending a powerful message
regarding equality. Participants commented on a number of other practical
benefits from this legislation, including that it would:
- provide a wider range of remedies for discrimination and
- lead to greater national consistency in anti-discrimination
protections.
6.1 The potential for cultural
change
A significant number of comments argued that federal legislation would send a
powerful message that discrimination on the basis of sexual orientation or sex
and/or gender is unacceptable.[84] For example the Victorian Bar stated:
[S]uch a law would provide an important federal symbolic statement about the
unacceptable nature of such discrimination. This would contribute to ensuring
that all persons are treated with dignity and respect regardless of their sexual
orientation or sex/gender identity. This symbolism would, it is hoped, extend
beyond the formal scope of the law to the community more generally and so affect
the way in which lesbian, gay, bisexual, intersex and trans people are treated
by other individuals on a day-to-day basis. The absence of this kind of
legislation could be seen by some in the Australian community as suggesting the
Commonwealth government does not take this kind of discrimination seriously, or
worse, sees nothing wrong with such
discrimination.[85]
A participant at the Melbourne roundtables spoke of the positive changes they
had seen in Tasmania since the introduction of legislation prohibiting
discrimination on these grounds:
The Tasmanian experience shows quite clearly that if a government takes those
steps and puts in place good anti-discrimination legislation, that it brings
about a change in societal attitude which is far beyond ... simply a fear of
breaching a law.[86]
Participants also commented that legislation prohibiting vilification and
harassment could lead to cultural change. For example, the Tasmanian Gay and
Lesbian Rights Group provided a powerful account of cultural change that has
occurred in Tasmania since the introduction of laws prohibiting
‘incitement to hatred’:
During the bitter, decade-long debate over decriminalising homosexuality in
the 1990s there was a constant stream of verbal statements and written materials
that incited hatred against gay, lesbian, bisexual, transgender and intersex
(GLBTI) people. This included written material published in newspapers and
distributed through the mail. It also included vilifying statements by public
figures. However, since the passage of the Anti-Discrimination Act in 1998,
which included provisions against incitement to hatred, such written and verbal
statements have virtually ceased. Tasmania’s public debate on GLBTI issues
continues to be vigorous but it is profoundly more mature, respectful and
constructive than it was before 1998. [87]
Other participants made similar comments:
I believe that such legislation sends a powerful message to anyone who is
inclined to discriminate against, harass or vilify LGBTI people. A great deal of
harassment is suffered by LGBTI people – especially same sex attracted
young people – and research has demonstrated that this results in much
higher rates of depression, drug abuse, self-harm and suicide. A federal law
would provide a strong foundation for education campaigns aimed at changing the
bullying behaviour that leads to these negative
outcomes.[88]
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. Unless there is a clear law against it, it is too easy for
bigots to feel their actions are justified, when actions based on prejudice and
hatred are not, and never can be,
just.[89]
A number of participants at the Melbourne Roundtables commented on the
importance of education and leadership in this area:
- Significant leadership would be required from our federal politicians to
implement federal anti-discrimination laws. This leadership can affect the
national psyche and change the future of the country.
- Without specific anti-discrimination laws, sexual orientation is not given
the same importance as discrimination on the basis of race, sex, age and
disability.
- A significant benefit of federal anti-discrimination laws concerning sexual
orientation would be the education of young people.
- Given that we are currently in the middle of developing a new national
curriculum in schools, education programs could have a large effect on the
future leaders of our
country.[90]
The members
of OUTthere Rural Victorian Youth Council for Sexual Diversity provided a
powerful summary of the cultural change that they hoped would occur in their
communities if federal laws were introduced:
- Same sex partners could attend school events, such as formals.
- Same sex attracted couples in schools would have freedom to walk around as a
couple, not having to hide who we are [our identities or relationships].
- Bullying would possibly be less, teachers and school staff would have to
acknowledge and address homophobic bullying in the same way they would have to
address racist or sexist bullying within the school.
- A safer school environment would mean kids would want to be at
school.[91]
6.2 A wider range of remedies for
discrimination
A number of participants observed that protection from discrimination on the
basis of sexual orientation and sex and/or gender identity would provide a wider
range of remedies for people who experienced discrimination. Participants argued
that there should be the same avenues as there are for people who are
discriminated against on the basis of their sex, race, disability or age under
existing federal anti-discrimination
laws.[92] The Commission heard that
this would have a significant positive impact. For example:
People would feel more secure in their workplace because they know their
rights would be protected and their job would be
safe.[93]
The consultation also heard that the investigation and conciliation service
provided by the Commission is an important mechanism for addressing
discrimination. For example:
The strengthening of civil protections in this area would also provide those
groups with less formal and more accessible means of redress through the dispute
resolution services offered by the Australian Human Rights Commission. In our
experience, such service can provide a quick and appropriate remedy for victims
of hate conduct, but can also have a broader, educative effect on all parties
involved in the dispute.[94]
6.3 National
consistency in anti-discrimination protection
A large number of participants observed that federal legislation might lead
to greater national consistency in anti-discrimination
protection.[95]
Many participants observed that there is gap in protection from
discrimination as Commonwealth agencies are currently not bound by state and
territory anti-discrimination laws. This was a particular concern for trans and
intersex participants as there are no federal protections from discrimination on
the basis of gender identity.[96] One participant observed:
It is self-evident that in the absence of federal anti-discrimination
protections, it is very difficult for [transgender, transsexual and intersex]
people to respond to any discrimination they encounter when interacting with
federal departments such as Medicare, Centrelink, the Australian Taxation
Office, or the Australian Passports
Office.[97]
The Law Council of Australia provided some examples of potential everyday
situations in which unfair discrimination might occur against individuals who
are in contact with Commonwealth agencies. For example:
- An employee in a Commonwealth department who is discouraged by the Senior
Executive from applying for promotion due to his transgender status.
- A person who is subjected to sustained, intrusive and intimidating
questioning by the Australian Federal Police about her lesbian background,
despite its lack of relevance to the crime of which she is suspected
(fraud).[98]
Further, a
number of participants commented on the inconsistency in state and territory
laws prohibiting discrimination on these grounds. For example:
Federal Laws would allow for all Australian LGBTI people to be protected and
have the same rights, compared to the mismatched State-based legislation that
currently exists.[99]
Some participants were hopeful that federal legislation would ‘fill the
gaps’ in terms of where state legislation does not adequately protect
people.[100]
[S]uch a law would close certain gaps that currently exist in relation to
protection of people from discrimination on the basis of sexual orientation and
sex and/or gender identity. ... not all states have the same degree of
protection from discrimination; for example, under New South Wales law, only
homosexuality is a prohibited ground of
discrimination.[101]
For trans people and intersex people, there are currently a large number of
‘holes in the net’ for people to fall through. Federal legislation
can make sure that there is one set of consistent rules that would cover all
people, regardless of geography. There is currently a significant lack of legal
protection for a trans
person.[102]
The Victorian Bar also noted that federal legislation could provide
protection against discrimination that comes under the very broad exemptions in
some state and territory legislation, depending on the way in which the federal
law was drafted and the exemptions that it included. [103]
6.4 Concerns
about legal protection from discrimination on the basis of sexual orientation
and sex and/or gender identity
A number of participants raised concerns about the introduction of federal
laws and how these laws might impact on other human rights, including freedom of
religion and belief, and freedom of expression.
Many of these submissions supported legal protection from vilification and
harassment in principle, provided that it is balanced with competing
rights.[104] Other participants
simply urged caution in considering such
laws.[105]
For example, a pastor commented:
I have known many homosexuals and lesbians as friends over the course of my
ministry ... The teaching of Christianity means that I am to love the person,
but I have no right to hate or attack or vilify them for their behaviour ...
individuals must be protected [by law] from the effects of hatred and in this
case, homophobia, but at the same time, I must (in good conscience) be free to
state what the Bible teaches
also.[106]
Another person noted:
Without question some people do experience unwarranted discrimination due to
sexual orientation and or gender identity. Hopefully measures could be
implemented to assist these people ... Yet [at] the same time, religious freedom
is also an important right and one that needs to be
protected.[107]
Some participants considered that existing laws already adequately protect a
person from vilification and harassment on the basis of sexual orientation and
gender identity and there was no need to change the
laws.[108] Others strongly opposed
any changes to the law.[109]
[84] See,
for example, OUTthere, Comment 72; Name withheld, Comment 92; Women’s
Legal Services NSW, Comment
116.
[85] Victorian Bar, Comment
148, p 4.
[86] Melbourne
roundtable on sexual orientation, 9 November 2010.
[87] Tasmanian Gay and Lesbian
Rights Lobby, Comment 153,
p2.
[88] Name withheld, Comment
9, p 1.
[89] Name withheld,
Comment 54, p 1.
[90] Melbourne
roundtable on sexual orientation, 9 November
2010.
[91] OUTthere, Comment 72,
pp 2-3.
[92] See, for example,
above, p 2; The Gender Centre, Comment 48, p
1.
[93] Name withheld, Comment
68, p 1.
[94] Victorian Equal
Opportunity and Human Rights Commission, Comment 121, p
10.
[95] See, for example,
Romanadvouratrelundar Starfield, Comment 27; Name withheld, Comment 35; Name
withheld, Comment 63; Freedom! Gender Identity Association, Comment 90; Name
withheld, Comment 92; National LGBTI Health Alliance, Comment 112; GRAI (GLBTI
Retirement Association Inc), Comment
140.
[96] See, for example, The
Gender Centre; Comment 48; Organisation Intersex International, Comment 82;
Freedom! Gender Identity Association, Comment 90; Victorian Bar, Comment
148.
[97] WA Gender Project,
Comment 125, p 6.
[98] Law
Council of Australia, Comment 132, p 19.
[99] Name withheld, Comment 75,
p 1.
[100] See, for example,
Name withheld, Comment 6; Name withheld, Comment 9; Name withheld, Comment 75;
Name withheld Comment 92; Law Institute of Victoria, Comment 144.
[101] Victorian Bar, Comment
148, p 3. See Anti-Discrimination Act 1977 (NSW), pt
4C.
[102] Melbourne roundtable
on sexual orientation, 9 November
2010.
[103] Victorian Bar,
Comment 148.
[104] See, for
example, Name withheld, Comment 16; Name withheld, Comment 18; Name withheld,
Comment 23; Name withheld, Comment 29; Name withheld, Comment 32; Anglican
Public Affairs Commission, Comment 36; Presbyterian Church of Australia, Comment
56; Anglican Church Diocese of Sydney, Comment 76; Seventh Day Adventist Church,
Comment 77; Anglican Church Diocese of Sydney, Comment 108; Name withheld,
Comment 127; Name withheld, Comment 128; Catholic Commission for Employment
Relations, Comment 150.
[105] See, for example, Australian Christian Lobby, Comment 87; Australian Family
Association, Comment 119; New Hope Baptist Church, Comment 129; Name withheld,
Comment 135; Name withheld, Comment
139.
[106] Name withheld,
Comment 16, p 1.
[107] Name
withheld, Comment 23, p
1.
[108] See, for example, Name
withheld, Comment 11; Name withheld, Comment 19; Name withheld, Comment 20; Name
withheld, Comment 25; Name withheld, Comment 38; Name withheld, Comment 44; Name
withheld, Comment 134.
[109] Name withheld, Comment 28; Name withheld, Comment 39; FamilyVoice Australia,
Comment 41; Endeavour Forum, Comment 42; Name withheld, Comment 49; Name
withheld, Comment 61; Organisation of Rabbis Australia, Comment 100; Tasmanian
Baptists, Comment 101; Salt Shakers, Comment 124; Name withheld, Comment
133.