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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

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.