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Addressing sexual orientation

and sex and/or

gender identity

discrimination

Consultation Report

2011

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Section 13 - Conclusion

Equality for people of all sexual orientations and sex/and or gender

identities is supported by international human rights agreements which Australia

has agreed to observe. Taking steps to achieve such equality is the

responsibility of the federal government. For this reason, the Commission is

particularly pleased by the Government’s commitment to introduce federal

protections from discrimination on the basis of sexual orientation and sex

and/or gender identity.

The Commission acknowledges the efforts of all of the individuals and

organisations that participated in this consultation. Their views are summarised

in this report which outlines the significant levels of discrimination,

vilification and harassment experienced on the basis of sexual orientation and

sex and/or gender identity, the benefits of including protections in federal

law, and how such protections might be framed. It also identifies other measures

that could improve the protection of the human rights of LGBTI people in

Australia.

There are significant gaps in the legal protection from discrimination on the

basis of sexual orientation and sex and/or gender identity at the state and

territory level and almost no protections at the federal level. This

consultation has clearly demonstrated the need for comprehensive protections.

The stories of discrimination, vilification and harassment, and the explanations

of the potential benefits of new protections from discrimination, were

compelling.

The belief that federal protection from discrimination on the basis of sexual

orientation and sex and/or gender identity would lead to cultural change was a

common theme of contributions to the consultation. The consultation heard

widespread support for the inclusion of protection from discrimination on the

basis of sexual orientation in federal anti-discrimination laws. The

consultation also heard of the importance of ensuring that people of all sex

and/or gender identities are protected from discrimination by the use of broad

and inclusive terminology in federal anti-discrimination law. State and

territory laws provide incomplete and inconsistent protection from

discrimination in this area. A number of consultation participants expressed

support for including protection on the basis of sex characteristics, gender

identity and gender expression in order to achieve the broadest coverage of

people of all sex and/or gender identities. The Commission also heard of the

need to ensure that people who are intersex are expressly included in

legislative protections from discrimination.

The consultation also heard of alarming levels of violence and harassment,

particularly towards trans and intersex people. The Commission encourages the

Government to give consideration to providing appropriate protections from

vilification and harassment on the basis of sexual orientation and sex and/or

gender identity in federal anti-discrimination law.

The Commission acknowledges that a small number of participants did not

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

orientation and sex and/or gender identity in federal law. Some participants

argued that there should be exemptions to laws prohibiting discrimination on

these bases, particularly for religious organisations. Determining the extent of

any exemptions must involve careful balancing of the right to be free from

discrimination with the right to freedom of religion and belief. The

Commission’s view is that there should be further consultation and careful

consideration of this issue.

Federal protection from discrimination on the basis of sexual orientation and

sex and/or gender identity would send a powerful message to our community

regarding equality. The Commission supports the introduction of such laws, which

could have a profound impact on reducing discrimination, vilification and

harassment experienced by LGBTI people in Australia.

The Commission is proud to provide this report to the Australian Government,

to assist in the processes of consolidating and harmonising federal

anti-discrimination laws and developing a National Action Plan on Human

Rights.