Changing Hearts, Changing Minds
Acknowledgements
Thank you for your kind introduction.
I would like to begin by acknowledging the traditional owners of the land we are meeting on today; the Larrakia people, and further the significant role Indigenous people have across our Asia Pacific region.
I would also like to acknowledge my fellow keynote presenters:
- The Honourable Justice Michael Kirby
- Kerrie Tim
- Professor Vitit Muntarbhorn
- Counciller Tony Briffa
- MP Louisa Wall
- Noelene Nabulivou
- Peter Hyndal and
- Jeswynn Yogarathnam
I also want to acknowledge the Australian Human Rights Commission’s senior policy adviser on sexual orientation, gender identity and intersex, or SOGII, issues – Siri May.
Siri only recently arrived at the Commission a few days after I commenced as Human Rights Commissioner, so we are both coming up to our three month anniversary, and she brings with her a wealth of experience in SOGII issues and makes an invaluable contribution.
While I am charged with responsibility as the public face for the Commission on SOGII issues, Siri is the one who does all the hard work and preparation and deserves all of the credit.
I wouldn’t want to resort to the stereotypes of the Eurhythmics by saying ‘that behind every great man there has to be a great woman’, but I do feel confident saying that in this case behind a man that is a great woman. Thank you, Siri.
And thank you, to all of you. It’s such a pleasure to speak at this forum. It is actually my first major speech on SOGII issues since commencing as Australia’s Human Rights Commissioner and it is appropriate I outline what I want to achieve in this important policy space.
As many of you will be aware, there is no dedicated Australian Commissioner to SOGII Human Rights.
While I have only been here briefly, I’ve already met many of you and it has provided a valuable and unique opportunity for me to meet numerous of you working in SOGII human rights across this region.
Many of you work in circumstances that present challenges far beyond the realm of our contemporary experience in Australia. I hold much admiration for your commitment, courage and perseverance against adversity.
Most people take the road most travelled, choose to blend in and avoid changing the status quo. But I happen to agree with Dr Gertrude who announced at the formal dinner last night that ‘blatant is beautiful’.[1]
Standing up and standing out isn’t easy and it too often falls on the shoulders of too few. That’s why people rightly say leadership is lonely. Because it requires you to stand free of the pack, carry a burden, take risks and bear consequences. You are all showing that leadership and you should be proud of your achievements.
I was encouraged to read that profiling personal stories as a way to highlight our humanity are key objectives of the forum this week.[2]
I commend the bravery of you all in gathering here to share your personal stories and experiences as a strategy to affect change.
In this spirit I would like to take a moment to acknowledge the organisers of both the Asia Pacific Out Games and the Human Rights Forum.
Like so many human rights initiatives the events in Darwin this week have been organised primarily by a collection of dedicated volunteers.
Volunteers who commit valuable skills and time creating spaces for our communities to both enjoy and compete in excellence within sports and to share and learn from the work of others across our Asia Pacific region.
I note with pleasure too, that numerous commercial sponsors are listed in their support of these important events, from airlines to small local businesses.
In the world of human rights rhetoric we often refer to this as ‘the mobilisation of civil society’.[3]
But it is much bigger that mere rhetoric. An essential component of free societies is a broad, engaged and responsible private sector including businesses, community groups and individuals that voluntarily collaborate.
Its value extends so much further than the mere sum of its contributing parts. Voluntarism binds together the fabric of our society. It fills the gaping hole between the micro capacity and interests of the average citizen and the macro role of government.
It is also where the hard and effective work to advance human rights battles are fought and won.
In this work is the key to building empathy in the minds of average citizens beyond our LGBTI communities.
This is the process that underpins the evolution of cultural change.
Having said this, I am not interested in just change, but in sustainable change. I refer to change beyond just legislation. Our ambition must be to sustainably change societal attitudes.
In my role as Australian Human Rights Commissioner, I want to strengthen this non-legislative defence of human rights in Australia.
This is the area I would like to focus my talk on today.
A Note on Terminology
Before I start a quick note on terminology. I want to acknowledge that the Commission recognises that terminology can have a profound impact on a person’s identity, self-worth and inherent dignity.
The use of inclusive and acceptable terminology empowers individuals and enables visibility of important issues. The Commission supports the right of people to identify their sexual orientation, sex and gender as they choose.
I am sure many of you may share my pleasure to hear of the recent decision by Australia’s High Court upholding that the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register a person's sex as ‘non-specific’.[4]
This ruling is in line with the findings and recommendations of the Commission’s 2009 Sex Files Report on the legal recognition of sex in documents and government records.[5]
This decision wasn’t just important for the individual concerned, though it was. It was important because it established that it wasn’t the role of government to tell people who they are, it is the role of the government to respect who people are.
At a forum in which we turn our eyes to this region, it is encouraging too, to note that India’s Supreme Court recently ruled on a landmark decision that recognises a third gender category for Indian transgender people.
A decision that in the words of the Court upheld the truth that ‘it is the right of every human being to choose their gender.’[6]
On this note the Commission also recognises that terminology is strongly contested. Issues concerning sexual orientation are quite different to issues concerning sex and/or gender identity.
For the purposes of my speech today I will be using the acronym ‘SOGII’ (sexual orientation, gender identity and intersex status) to refer to the group of rights we are discussing, and ‘LGBTI’ (lesbian, gay, bisexual, transgender and intersex) to refer to the people, identities and experiences that these rights impact.
My role as the Human Rights Commissioner
In two days it will be three months since the Governor-General appointed me as Australia’s sixth Human Rights Commissioner to be based out of our National Human Rights Institution. Like all national human rights institutions, the Commission was established under relevant Federal legislation and is part of Australia’s commitment to protecting, fulfilling and respecting human rights domestically.
When called to do so, the Commission also works internationally - usually within the context of specific bilateral agreements or relevant forums such as the Commonwealth Forum of Nations, or the Asia Pacific Forum.
We do this work on invitation, and always in collaboration with local partners who lead and direct any activities we undertake.
There are currently eight Commissioners at the Commission, which include the President and Commissioners that focus on discrimination on the basis of Age, Sex, Race and Disability. There’s also the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Children’s Commissioner.
And then there is my office – the Human Rights Commissioner.
The role of the Human Rights Commissioner differs from the other Commissioner’s portfolios that provide specific focus through relevant pieces of Federal legislation.
While much good work has been done in the past, there has never been a Commissioner explicitly responsible for spearheading a SOGII agenda.
My arrival has provided this opportunity and I want to make it clear that it is a role I take on with great enthusiasm.
As Australia’s first openly gay Human Rights Commissioner, I welcome the opportunity to utilise my public position to advocate for the realisation of human rights in this context.
But the Commission does have a proud history. Throughout the 2000s, the Commission undertook a public consultation to canvas the experiences and views of people who may have been discriminated against on the basis of their sexual orientation, gender identity or because they are intersex.[7]
The results of this consultation, as with the Same Sex Same Entitlements enquiry in 2007 [8] and the Sex Files Report in 2012 contributed to significant law reform in Australia spanning from relationship recognition to anti-discrimination protection.[9]
Again it was the power of personal stories in all of these major reports that ultimately made them effective. Participants revealed personal stories of discrimination, vilification and harassment that provided compelling evidence of the need for legal, policy and cultural change.
Even with the extent of law reform here, people of diverse sexual orientations, sex and gender identities in Australia experience discrimination in a number of areas of public life and infringements of their human rights including high rates of violence, harassment and bullying.[10]
My approach to human rights – from philosophy to law
My approach to SOGGI human rights is firmly founded in my approach to human rights more generally.
As with any country, there are competing views about how we should approach human rights and freedoms in Australia. After all, human rights are a political construct. Other countries such as our neighbours in Samoa use terms such as ‘community rights’ to describe a similar set of principles.
Within my role I approach human rights from a classical liberal perspective – that human rights are the protection of the individual from the abuse of government power, that people own their own lives and that they should pursue their opportunities and enterprise, while ensuring they do not do harm to others.
SOGII Human Rights
For SOGII human rights this holds specific implications.
The International Covenant on Civil and Political Rights (ICCPR) enshrines the rights of all people to non-discrimination and equality before the law.[11]
The right to the equal protection of the law without discrimination requires State Parties to prohibit discrimination and take action to protect against discrimination.[12] A number of UN Committee decisions and statements have confirmed that this right to non-discrimination extends to sexual orientation and gender identity.[13]
In Australia, thanks to the sustained efforts of an impressively effective and dedicated lobby of LGBTI communities and people, we have benefited from substantial and sustained law reform in this area.
We no longer face laws that criminalise consensual homosexual sexual activity. It was in 1997 that Tasmania became the last Australian state to decriminalise sex between consenting adult men in private.[14]
As with most Commonwealth countries, on the issues of SOGII, Australia’s laws were inherited from Victorian England.[15] These laws primarily focused on sex between adults males. Women on the other hand have never come within the ambit of Australian statutes, nor has there ever been any attempt in Australia to introduce penalties for consensual lesbian behaviour.[16]
The invisibility of women in this context, whilst generally protecting them from criminal charges and imprisonment, has presented its own challenges of visibility in the battle against cultural homophobia.
It is also important to acknowledge that substantial legislative challenges still exist for transgender and intersex people in Australia as separate from LGB law reform.[17]
In addition to the decriminalisation of male homosexual sexual activity, Australia now enjoys extensive Federal same-sex relationship recognition, and more recently new Federal anti-discrimination legislation protection and substantial policy reform including the recent Federal guidelines on Sex and Gender Recognition.
Marriage for same-sex couples is now perceived as inevitable.
In this sense we could position ourselves as a lucky country. Although the truth is that our luck is the result of the courage of individuals in our communities to speak up, frequently at a profound risk to themselves and their reputation.
I do not want to take anything away from the hard word and efforts of past activists who’ve got reform as far as they have. But I also want to acknowledge that we have entered a difference phase in achieving the further advancement of LGBTI people in this country.
Often we can get lost talking about the mechanics of legal and policy change. But it is through understanding the experiences of discrimination, vilification and harassment that we can really appreciate the importance of equal treatment under law, discrimination protection and education and awareness raising for LGBTI people in Australia and indeed across our region.
Law can only take us so far. Law is the line between legality and illegality. It can have a modest educative effect. But after law there is still much more work to be done.
It was the bravery of individuals willing to share their stories that has effectively imbedded empathy in the hearts and minds of average Australian citizens on these issues.
The power of personal stories provides a human face to the experience of discrimination. This in turn leads to real and sustainable change in the realisation of SOGII human rights.
Much of the explicit work is done. It is now time to do the implicit work. The solutions to many challenges now faced by LGBTI Australians is not in law, but in sustainable cultural change.
The burden no longer sits on the few - it now sits on the shoulders of the many who, everywhere across this country, need to accept that we all have a role to play in changing hearts and minds.
That is where I will be focusing my efforts as Australian Human Rights Commissioner. On the mechanisms, innovative solutions and successes of using non-legislative measures to drive change.
There are many ways that I will be seeking to contribute to that effort.
SOGII Human Rights work at the Commission
I want to share some of my intentions for SOGII human rights during my tenure in this public office.
Fitting well with today’s event, offered as part of the Asia Pacific Out Games, I also hold a particular interest in positive role sports can play within the progression of a SOGGI human rights agenda.
First, we will be expanding on the good work already undertaken at the Commission in this area to address LGBTI inclusiveness.
Working with the organisers of the Bingham Cup – an international gay rugby tournament to be held in Sydney this coming June – the Commission assisted in the development of an anti-homophobia sporting code.
This initiative has now been formally adopted by five of Australia’s professional sporting codes. This is a genuine watershed moment for LGBTI Australians, period, and equally in the history of Australian sporting history.
Sport is a national pastime. It binds us as a nation. It is one of the last frontiers to advance inclusiveness.
The work done by the Bingham Cup organisers is impressive. But there is still much more work to be done. The Human Rights Commission, working with the Australian Sports Commission, is broadening the scope of the inclusiveness framework to go beyond LGB and include T and I.
We then want to expand it further and seek the support of all professional sporting codes having built and learned from the hard work already done. Further, I am keen to continue to drive change from professional codes and see the spirit adopted by non-professional codes, peak bodies all the way down to community and school sports.
This work will make a tangible difference to the lives of LGBTI Australians. That difference will not just mean that LGBTI Australians can feel more confident participating in sports - it will also challenge another remaining environment where there is still at least a perceived prevalence of prejudice. It will provide another contact point for, particularly, young Australians questioning their sexuality or gender identity to know that it is ok to be who they are.
It also makes sports more inclusive, it will encourage people to participate and support them to gain the confidence that participation and achievement sports can provide.
Second, we will be developing a report that assesses the state of legislative and non-legislative SOGII programs for Australia. The report is being developed under the working title of ‘the State of the Nation report’.
The purpose of the report will be to demonstrate the state of laws at a Commonwealth and State level that directly impact on LGBTI Australians.
While there is nothing fundamentally wrong with different States having different laws, many laws around matters such as anti-discrimination represent the times of their introduction and do not cover the full breadth of grounds of discrimination that exist in the Commonwealth laws passed only last year.
By aggregating the necessary information we can provide a guide for States about how they may wish to change their laws to align them with the Commonwealth and contemporary attitudes.
Similarly, the report will seek to categorise the services and programs being delivered to aid LGBTI Australians. Many programs developed for LGBTI Australians are necessarily developed on an ad hoc basis, but provide useful information that could be easily replicable.
By mapping a clear thematic diagram we will then be able to identify where activities overlap, where there are gaps in each State and Territory, and where groups can replicate programs based on the prior learning of others.
Consultation is a fundamental part of any work at the Commission. The report will offer an overview of social research in combination with the personal stories of LGBTI people in Australia. These personal experiences will be collected within the ambit of a nation-wide listening tour I will be leading from September to November this year.
The nation-wide listening tour will explore at how human rights, both SOGII and non-SOGII, can be advanced through non-legislative means.
We then want to see how we can celebrate good work that is already being completed and assist others to replicate it.
As part of this project we will gather information about initiatives as diverse as voluntary sporting codes, the activities of LGBTI community organisations, anti-homophobia programs in schools, awards and recognition programs, social groups and resource development on SOGII human rights across Australia.
Third, as part of our broader human rights and business program, we will be working to drive inclusiveness for LGBTI Australians through the business community.
Many businesses already make efforts to value their LGBTI employees, and organisations such as Pride in Diversity assist them greatly in this endeavour.
We shouldn’t kid ourselves, while I do not doubt their genuine intent; this agenda is partly driven by sensible and rational self-interest in hiring, rewarding and keeping talented employees. And it is relatively easy for the top end of town to do so.
We need to learn from their experiences and bring in more businesses that can see the value in actively promoting their LGBTI-friendliness.
We are particularly interested in taking it beyond big businesses in Melbourne and Sydney and exploring how we can adapt appropriate tools and policies for the small to medium business sector that are busy and are equally sensitive to additional costs.
Fourth, we are investigating how we can develop a national program of LGBTI role models to help put a public and successful public face to young people struggling with their sexuality and gender identity.
It wasn’t too long ago that there were few LGBTI people portrayed in mainstream media, and even when they were they tended to be positioned in stereotypes often depicted as spinsters, funny uncles or dying AIDS patients.
Things have got a lot better. But there is still a need for diverse role models that young people can look up to so they know that being who they are will not hamper their prospects at career and life success.
So many LGBTI Australians do amazing work, achieving incredible professional and personal success and contributing to the success of our nation. We should be highlighting it for the next generation and also to continue to challenge the broader Australian public.
It’s also an opportunity to celebrate success from within our community.
Beyond Australia
My role ends at Australia’s sovereign borders. While the focus of the Commission is largely domestic, we also work in international contexts when invited.
As I know you are all too aware, discrimination against LGBTI people continues to be pervasive across many parts of the world. A point too familiar to all of us is that in certain countries, this discrimination is formally institutionalised by state legislation criminalising homosexuality.
I was alarmed to note a recent publication revealed the struggles for decriminalisation of homosexuality still continue in 42 of the 53 Commonwealth States.[18] I was further saddened to read of the systemic and sometimes lethal violence directed at LGBTI people as a result of their sexual orientation in equally as many countries.[19]
Despite these troubling reports, I am hearted that international traction on human rights and sexual orientation, gender identity and intersex status has increased significantly over the past three years, including a formal acknowledgment of support from United Nations Secretary-General Ban Ki-Moon.
In his historical address to the Human Rights Council the Secretary-General eloquently articulated the position of the United Nations on the issue – he said:
‘Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere. [20]
Similar and important statements have been made at a Commonwealth level, and I am encouraged by the public support currently offered to this brief. This offers an opportunity for us to capitalise on this support and champion this agenda.
But I am not interested in grandstanding - I am interested in how we get results.
I understand that human rights issues related to sexuality and gender identity are sensitive in some contexts as a result of cultural and religious practice.
I understand that in discussing these sensitive issues it is often not desirable for an outsider to directly raise such concerns, where local or allied voices can receive a better hearing.
While the Commission rightly has a strong and proud voice on LGBTI issues, our interest is how to most successfully advance human rights outcomes in partnership with local allied voices.
It is unlikely a chest thumping Australian Human Rights Commission will be able to effect change. But working through the Commonwealth, we can play a positive role with a much larger capacity for success.
I should also add that sometimes working discreetly is more effective domestically as well.
Conclusion
The objective of my term is to drive sustainable change.
This will be achieved beyond the work we do directly. It will be achieved in the development of cultural momentum. A momentum that enables people to be empowered and to help themselves.
For this to be successful it must occur on a macro societal level as well as the level of the individual, family and community.
To that end I am inspired by the words of Lilla Watson. She was born out of the struggle for equality and human rights within the Australian Aboriginal and Torres Strait Islander communities. She said:
‘If you have come to save me, you are wasting your time. If you have come because your liberation is bound up with mine, then let us work together.’ [21]
Together, we can effect sustainable change.
Thank you.
[1] Watts, Richard. Blatant is Beautiful, Performance for Asia Pacific Out Games & Human Rights Forum Formal Dinner, 15 May 2014, Darwin. Also referenced in other written work by Richard Watts. Accessed May 22 2014.
http://gaynewsnetwork.com.au/viewpoint/gertrude-blatant-is-beautiful-11…
[2] Human Rights Forum, Power Though Action: Objectives.
Accessed 14 May 2014:
http://3apog.com.au/human-rights/hrf
[3] Buhl, D & Blyberg, A (ed), Ripples in Still Water, Reflections by Activists on local and national level work on social, cultural and economic rights, The Human Rights Resource Centre, University of Minnesota, Washington, 2004. Accessed:
[4] High Court of Australia, NSW Registrar of Births, Deaths and Marriages v Norrie, [2014] HCA 11. Accessed: May 14 2014 at:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-11-2014-04-02.pdf
[5] Sex Files: the legal recognition: Concluding paper of the sex and gender, Australian Human Rights Commission, 2009. Accessed May 14 2014:
https://www.humanrights.gov.au/sex-files-legal-recognition-concluding-paper-sex-and-gender-2009
[6] Limaye, Y., India court recognises transgender people as third gender, BBC News, 15 April 2014. Accessed May 14 2014: http://www.bbc.com/news/world-asia-india-27031180
[7] Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011), p 1. Accessed 14 May 2014: http://www.humanrights.gov.au/publications/consultation-protection-discrimination-basis-sexual-orientation-and-sex-andor-gender
[8] Same-Sex: Same Entitlements, Final Report Australian Human Rights Commission, 2007. Accessed 14 May 2014: https://www.humanrights.gov.au/publications/same-sex-same-entitlements
[9] Wilson, T. SDA Amendments Speech for Australian Public Service Human Rights Network, Monday 7 April 2014, Canberra. Accessed May 14 2014:
https://www.humanrights.gov.au/news/speeches/sda-amendments
[10] See for example, Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011). Accessed May 14 2014: http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/index.html; Inner City Legal Centre, Outing Injustice: Understanding the legal needs of the lesbian, gay, bisexual, transgender and intersex communities in New South Wales (2011). At: http://www.iclc.org.au/outinginjustice/
[11] International Covenant on Civil and Political Rights 1966, arts 2(1), 26
[12] Human Rights Committee, General Comment No. 18, paras 10 and 12.
[13] Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000 (2003), Accessed: May 14 2014 at http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument and see generally Nowak, note 17, pp 623–626. Discrimination on the grounds of sexual orientation is also prohibited under art 2(2) of the ICESCR: Committee on Economic, Social and Cultural Rights, General Comment No. 18 – the Right to Work, UN Doc E/C.12/GC/18 (2005), para 12(b)(i),at http://tb.ohchr.org/default.aspx?Symbol=E/C.12/GC/18 (viewed 26 March 2013), and Committee on Economic, Social and Cultural Rights, General Comment No. 14 – the Right to the Highest Attainable Standard of Health, UN Doc E/C.12/2000.4 (2000), para 18. At http://www2.ohchr.org/english/bodies/cescr/comments.htm . Also see Committee on Economic, Social and Cultural Rights, General Comment No. 20 – Non-discrimination in economic, social and cultural rights, UN Doc E/C.12/GC/20, para 32. Human Rights Committee, General Comment No. 18, paras 10 and 12.
[14] Croome, R., Gay Law Reform in A Companion to Tasmanian History, Centre for Tasmanian Historical Studies, Hobart, 2006. Accessed May 14 2014: http://www.utas.edu.au/library/companion_to_tasmanian_history/G/Gay%20Law%20Reform.htm
[15] Samuels, A., Codification, Council of the Statute Law Society, London, 2004. Accessed May 14 2014:
http://www.statutelawsociety.co.uk/wp-content/uploads/2014/01/Codification_-_Alec_Samuels.pdf
[16] Bull, M, Pinto, S. & Wilson, P., Homosexual Law Reform in Australia, Australian Institute of Criminology, Canberra, 1991. Accessed: http://aic.gov.au/documents/F/2/E/%7BF2ED9BD3-0314-4EAA-AD03-410635E620DE%7Dti29.pdf
[17] Sex Files: the legal recognition: Concluding paper of the sex and gender, Australian Human Rights Commission, 2009. Accessed May 14 2014:
https://www.humanrights.gov.au/sex-files-legal-recognition-concluding-paper-sex-and-gender-2009
[18] Lennox, C. & Waites, M., Human rights, sexual orientation and gender Identity in the Commonwealth: from history and law to developing activism and transnational dialogues, in Human rights and gender Identity in the Commonwealth, Struggles for Decriminalisation and Change, Institute of Commonwealth Studies, School of Advanced Study, University of London, 2013.
[19] Born Free and Equal Report, United Nation Office of the High Commissioner on Human Rights, Geneva 2012.
Accessed May 14 2014: http://www.ohchr.org/EN/NewsEvents/Pages/BornFreeAndEqual.aspx
[20] UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012
Accessed May 14 2014: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx
[21] Watson, L. Lilla: International Women’s Network. Accessed May 14 2014:
http://lillanetwork.wordpress.com/about/
