Summary of Web Comments - Consultation on protection from discrimination on the basis of sexual orientation, sex and/or gender identity (2011)
Summary of Web Comments
Consultation regarding
protection from discrimination on the basis of sexual orientation, sex and/or
gender identity
January 2011
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Introduction
The Australian Human Rights Commission launched its consultation regarding
protection from discrimination on the basis of sexual orientation, sex and/or
gender identity on 1 October 2010.
An internet-based questionnaire was provided on the Commission’s
website to facilitate public contribution to the consultation. By 26 November
2010, we received comments from 51 individuals.
Many participants requested that their identity be withheld. A few
participants requested that their comments be treated as confidential. Some
participants chose not to respond to all of the questions listed.
In order to respect the privacy of participants and reflect the diversity of
comments received, a summary or responses provided to each question is provided
below.
1 What benefit would there be in federal law
prohibiting discrimination on the basis of sexual orientation and sex and/or
gender identity?
The overwhelming majority of comments received supported the need for federal
laws prohibiting discrimination on the basis of sexual orientation and sex
and/or gender identity. Many participants commented that such laws would have an
important symbolic value and educational role in promoting the equality of all
people regardless of their sexual orientation or their sex and/or gender
identity.
For example, one participant noted:
Most importantly, [discrimination law] serves as an educational guide which
says to all members of Australian society that discrimination on the basis of
actual or perceived sexuality or actual or perceived gender identity is morally
wrong, unethical, illegal, un-Australian and not condoned by the Australian
government and Australian people. Secondly, it fills the gaps which are not
covered by state and territory legislation, and which have been exploited by
those who wish to discriminate.
Comment 2
Many participants commented that a person should not be discriminated on the
basis of a private matter such as sexual orientation. Many participants also
expressed the view that federal laws would create some consistency and
uniformity in protection from discrimination on these grounds across Australia.
Some participants commented that federal laws were required to prevent
discrimination by Commonwealth agencies in the provision of services and
employment. Participants argued that such laws would protect:
- job security
- access to education.
Other benefits raised included:
- consistency throughout Australia in laws relating to changing sex on
identity documents
- improvement of the mental health of LGBTI people as a result of reduced
discrimination.
One participant noted that federal laws could be
used to bring about an equal age of consent for sex in Queensland.
Some participants noted the importance of ensuring adequate protection of
freedom of religion, for example:
I see some benefits, but there has to be allowance within any legal framework
for certain organised groups, primarily religious groups, to discriminate in
matters of employment where the group’s deeply held philosophical and
theological position is reflected in a policy.
Comment 128
I see the benefit as negative – that is it would be a detriment –
unless there is companion legislation which fully and comprehensively legislates
for and protects the freedoms of religion and speech which are contained in the
International Covenant of Civil and Political Rights which Australia has both
signed and ratified; and such legislation makes clear beyond doubt that the
freedoms of religion and speech are fundamental rights which may not be abridged
or restricted in any way by anti-discrimination legislation.
Comment 32
Several participants argued that there would be little or no benefit to
protections in this area. Some people felt that there would be no benefit
because existing laws adequately protected people from discrimination on these
grounds.
2 What benefit would there be in federal law
prohibiting vilification and harassment on the basis of sexual orientation and
sex and/or gender identity?
Again, the majority of responses to this question indicated that there would
be an enormous benefit to protection from vilification and harassment on the
basis of sexual orientation and sex and/or gender identity. Many comments stated
that vilification or harassment on any grounds is wrong or unacceptable. For
example:
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.
Comment 54
It would allow people to feel safe and secure in the knowledge that they have
a right to act against vilification and harassment based on their
sexuality/gender.
Comment 79
People, especially the younger parts of the community, would not have to
worry that they are going to be judged for existing. They will have confirmation
that there is nothing wrong with them and that they should not have to put up
with things like harassment.
Comment 69
Several participants raised concerns about the ambiguity of anti-vilification
laws and expressed that the law should clearly define what constitutes
vilification or harassment.
Vilification of any person or group is an ugly thing but the law should
carefully define what constitutes slander / vilification. Religious groups also
have reason, on occasions, to speak about and even against the teachings of
other religious groups in society. Anti-harassment and anti-vilification laws
should not prevent the free exchange of dialogue on such matters.
Comment 128
Some participants felt that there should be minimal exceptions to
vilification or harassment, reflecting that this was perceived to be a more
serious form of discrimination.
A few participants commented that there would be some benefit to protections
against vilification or harassment provided freedom of religion and speech were
also adequately protected. Others felt that there would be little or no point to
such protection, with some people commenting that adequate protections already
existed.
3 Can you provide examples of situations where
federal protections from discrimination on the basis of sexual orientation, sex
and/or gender identity are needed because state and territory laws do not
provide adequate protections
This question prompted a wide range of responses. Examples of situations
where participants felt that state and territory laws did not provide adequate
protections included:
- the lack of protection against vilification and harassment under Western
Australian law
- the inability to take action against a facility that will not provide access
to appropriate toilets
- inadequate protection in any state from discrimination on the basis of
gender identity.
Some participants also provided examples of the
discriminatory operation of state laws, including:
- the lack of recognition of non-birth mothers in some states leading to
lesbian couples travelling interstate to give birth
- the distinction in the age at which consensual sex is permitted for same-sex
attracted men in Queensland, compared to the age of consent that applies to
heterosexual couples
- the difficulty in changing sex on official documents, including the
requirement in some states that a person who has changed their sex must divorce
their spouse in order to change their legal sex on official documents
- the prohibition on same-sex adoption in some states.
Some
participants also raised concerns about the operation of exemptions in state
laws:
- one participant argued that the exemption of not-for-profit organisations
from Queensland discrimination law was wrong
- some participants argued that Victoria’s anti-discrimination laws
provided exemptions to religious groups which are too wide
- others argued that Victoria’s laws did not provide enough protection
to religious groups, referring to the Cobaw Community Health Services Ltd v
Christian Youth Camps Ltd & Anor case as an example.
Many
people supported the notion of consistent laws across Australia rather than the
widely diverse laws which currently exist in each state and territory.
Participants felt that inconsistent laws create confusion and uncertainty about
what laws apply.
Many states are behind on this issue with regards to legislation, and if they
have legislation in place, it needs amending.
Comment 79
4 Have you experienced discrimination because of your
sexual orientation or sex and/or gender identity for which there is no legal
protection?
In response to this question, some participants answered yes or no without
elaborating further. Others chose not to provide a response to this
question.
Examples of discrimination provided by participants included:
- discrimination in employment including not getting jobs, being dismissed or
forced to leave employment
- being unable to use female bathrooms in some workplaces
- being refused rental accommodation.
One participant gave the
example of discrimination occurring as a consequence of not being able to change
identity documents:
I was issued with an infringement notice by the WA Police, which listed my
sex as ‘male’ – even though I am clearly not. Due to the legal
requirements behind receiving a Gender Recognition Certificate including strict
surgical requirement, leading to having my birth certificate modified, I have so
far been banned from making this important change as I have not undergone the
appropriate surgery.
Comment 98
Some participants described the impact this form of discrimination had on
them personally:
Yes. I have been called ‘poofter’ from the early days in high
school because I was small, weak and studious. I drew into a shell and did
nothing but study. The thought of talking to anyone about my feelings, let alone
complaining would have been laughable. I was often physically attacked at school
as well. I am surprised I got through those years. I did so by retreating
inwards, not even attempting to try any form of sex, shying off when friends
started coupling, focussing on my work and study, hiding in the library at lunch
time to avoid being mocked and bullied. How many more young people are less
resilient than I was?
Comment 7
Another participant described a more positive experience:-
Not as yet on a personal basis, I’ve only accepted my situation/life in
the last two years and I have a good employer. Things are a lot better in public
these days too but I’m sure that one day it will happen to me for sure, I
just don’t know when as I do live a simple life.
Comment 22
A bystander who witnessed discrimination on these grounds noted their
concerns:
No, I am heterosexual but I have witnessed others being treated unfairly
based on their sexuality. The problem is ‘policing’ – because
we don’t have strong leadership on what is right and wrong –
teachers, police etc can be discriminatory.
Comment 15
5 Have you experienced vilification or harassment
because of your sexual orientation or sex and/or gender identity for which there
is no legal protection?
Again, many people described their personal experiences with vilification and
harassment whilst others chose not to elaborate on this question. Some people
gave the same answer as for Question 4.
Examples of vilification or harassment provided by participants included:
- bullying and harassment at schools and universities
- ‘verbal abuse from some religious zealots’
- homophobic comments made by customers in a workplace.
For
example, one participant commented:
Throughout my time in high school I experienced constant harassment because
of my gender identity. I was frequently made fun of in class, often by teachers.
Students refused to use my chosen name, instead referring to me by my birth name
and using female pronouns; teachers did not punish them even though it was quite
clear that the harassment was deliberate. Students would play pornography on
their phones/iPods and show it to me during class. Many classmates consistently
asked me unnecessary and invasive questions about my sex life and preferred
sexual practices. Food was thrown at me on a number of occasions. I was pushed,
spat on and hit... None of the people who bullied me were ever punished.
Comment 70
An intersex participant commented:
I am “outed” on a daily basis by people who think they know my
“secret” sometimes they then proceed to refuse service, use
inappropriate pronouns or otherwise be rude. The fundamental harassment is
Intersexphobic, transphobic and homophobic at once because I am thought to be
lesbian when with my partner. When using the airports I am routinely scanned for
explosive residue and have my bags searched. My partner who often accompanies me
and is frequently standing next to me has never been scanned or searched
once.
Comment 8
Another participant commented that although they hadn’t personally
experienced vilification or harassment, they would like gay/lesbian friends to
have that same freedom.
6 What terminology should be used in federal
anti-discrimination legislation if protection from discrimination on the basis
of sexual orientation is to be included?
The most common response to question 6 was to express support for the use of
the term ‘sexual orientation’.
The majority of participants suggested that broad, all inclusive terms should
be used, rather than the categorisation of specific subgroups.
One participant advocated for non-specific terminology, which did not use
categorising words such as gay, lesbian, transgender, intersex and queer,
stating:
It would be ideal for the legislation to encompass all human beings and the
entire spectrums of both sexuality and gender, and any wording used should
reflect this.
Comment 79
Another participant noted:
I think broad terms like "sexual orientation and/or gender identity" are
helpful because they are understood by most people and not just those who are
already immersed in the discourse of sex and gender rights.
Comment 54
Many participants were opposed to any terminology which implied that sexual
orientation is a choice or preference.
A few participants suggested the use of the term ‘same-sex
attracted’.
Several participants also suggested that legislation should protect people
for both ‘actual’ and ‘perceived’ sexual orientation.
One participant asserted that an individual’s actual sexuality or gender
may differ from another person’s perceptions of their sexuality or gender
(Comment 105). Another participant suggested the term ‘actual or perceived
non-heterosexuality’.
Two participants were opposed to the use of the term ‘sexual
orientation’. One asserted that the term ‘sexual orientation’
implies that everyone has a distinct orientation. Use of this term will thus
pressure people to “fit the template” and thus should not be used
(Comment 123). Another participant preferred the term ‘sexuality’
instead of ‘sexual orientation’.
Finally, one participant argued that there needs to be a clear distinction
between discrimination of the basis of sexuality, sexual formation and gender
expression in order to adequately recognise the distinct legal and human rights
of all Australians (Comment 118).
7 What terminology should be used in federal
anti-discrimination legislation if protection from discrimination on the basis
of sex and/or gender identity is to be included?
Most participants opposed the use of terms which emphasised choice such as
‘chosen gender’ and preferred all inclusive terms such as ‘sex
and gender identity’ and ‘sex and gender diverse’. There was
also some support for using the term ‘gender expression’ as well as
‘gender identity’.
One participant argued that legislation ‘should protect all sex and
gender diverse people regardless of how they personally identify’.
One participant asserted that legislation should read as follows:
It is illegal to discriminate against a person or persons on basis of their
gender identity, gender presentation, gender history, level of physical
transition, level of social transition or legal sex.
Comment 70
Several submissions asserted that legislation should clearly prohibit
discrimination on the grounds of both sex and gender. For example, Comment 75
defines sex as the ‘physical characteristics of a person's reproductive
organs’ and gender as ‘the emotional, behavioural, and cultural
manifestations of masculine and feminine and the spectrum surrounding those
terms in one person’.
One participant suggested that the use of the phrase ‘diversity in
sexual formation or expression’ would avoid the controversy and potential
for error associated with the terms ‘transgender’,
‘transexual/ism’ and ‘intersex’.(Comment 118).
7a What are the advantages or disadvantages of the
terms used in state and territory laws, including: gender identity; chosen
gender; gender history; a gender reassigned person; or a recognised transgender
person; or transexuality?
Several participants argued that common terminology should be used in State
and Territory laws. Comments included:
Some people do not feel that they fit within some of these terms, a term that
can be used for all laws would be best practice.
Comment 6
The major disadvantage is that there is no standard or common law between
most states. A person can be discriminated [against] in one state for reasons
that another state disallows.
Comment 98
Another participant commented that the terms currently used in State and
Territory laws are ‘conflicting and confusing’ and ‘outdated,
vague, misleading and discriminating’ (Comment 118).
The term ‘chosen gender’ was criticised by several participants
for implying that people have a choice (Comments 51, 58, 69, 70, 79):
The disadvantages of including the word ‘chosen’ in ‘chosen
gender’ are that it is implied that these are choices for all people, and
therefore to not be discriminated against is an extraordinary privilege not a
right.
Comment 75
Another participant expressed opposition to the use of the term
‘transsexuality’:
I personally dislike transsexuality as to me it belittles the person and
makes them sound like a porn star. Transgender to me personally is more
descriptive of the person.
Comment 53
A few people were opposed to using specific categories and preferred all
inclusive phrases. One participant asserted that categories ‘reinforce the
notion that certain sexual and gender orientations are still considered
“other” when held up against heterosexuality’ (Comment
79).
Several submissions supported the use of the term ‘gender
identity’.
7b Should protection from discrimination be
provided if a person has or appears to have the characteristics of any
gender?
The majority of participants asserted that protection from discrimination
should be provided if a person has or appears to have the characteristics of any
gender. There was a lot of support for protection against discrimination on the
basis of actual or perceived gender and the use of broad terminology (see
Comment 105).
For example, one participant responded:
Absolutely. There is a huge continuum of gender and how people express their
gender. It cannot be defined as one or the other.
Comment 12
Another participant asserted:
People should have the right to present as whatever gender they chose without
fear of discrimination.
Comment 54
Only one submission was opposed to providing such protection. That
participant maintained that ‘it is our right to discriminate’ and
that employees should be able to discriminate (Comment 11).
8 What terminology should be used to ensure that
people who identify as intersex are protected from discrimination in federal
law? Should the term intersex be used? Should protection from discrimination on
the basis of sex include people who are of indeterminate sex?
The majority of participants who responded supported the use of the word
‘intersex’. Several comments also supported the use of the term
‘indeterminate sex’.
Examples of comments provided include:
Intersex is the only accurate term that describes individuals who have
differences of sex anatomy without perceiving those differences as disability or
illness. Intersex differences themselves do not disable a person or cause any
illness. The single most damaging issue for Intersex is social attitudes to our
differences.
Comment 8
The laws should DEFINITELY protect those who are of 'indeterminate sex'; all
humans deserve equality.
Comment 79
One comment opposed the use of the terms ‘intersex’ and
‘indeterminate sex’ preferring instead the term ‘diversity in
sexual formation’, ‘defined broadly to include transsexualism as
well as the other diverse manifestations of intersex (Comment 118).
Many participants declined to offer an opinion as they are not themselves
intersex.
9 What special measures designed to benefit specific
groups based on sexual orientation and sex and/or gender identity should be
allowed by federal anti-discrimination law?
Some comments supported special measures designed specifically to redress
discrimination against a particular group of people. For example one participant
commented ‘while inequality exists between sexes, genders and sexual
orientations, then measures seeking to improve the situations of those affected
are not discriminatory’ (Comment 75).
Some participants responded to this question by commenting on exemptions. For
example, one participant suggested the exemptions be decided on a case-by-case
basis by application only:
No blanket exemptions. Exemptions by application only, and public
notification of those exemptions provided by those who receive any exemptions.
Comment 92
Other participants responded to this question by discussing general
initiatives that they felt would address discrimination on the basis of sexual
orientation and sex and/or gender identity, for example providing education,
supporting people in employment, or supporting people through transition
processes.
A few participants stated the view that special measures were not necessary
as there is already adequate protection in anti-discrimination laws.
10 What other actions would you like to see the
Australian Government take to better protect and promote the rights of LGBTI
people in Australia?
An overwhelming number of participants commented that they would like to see
education about LGBTI issues in schools, and workplaces and provided through the
media:
Funding and proactive efforts into putting constructive education into
schools and into the mass media, about gender and sex diversity and sexual
orientation. Discrimination starts at home and helping peoples’
understanding and acknowledgment of it will also help reduce discrimination in
current and future generations of Australians.
Comment 98
An equally large number of participants stated that the Marriage Act
1961 (Cth) should be amended so that it no longer defines marriage as
‘the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life’. Some participants also argued for the
establishment of a Commonwealth civil, domestic or de facto partner registration
scheme.
-
allowing people who remain married to change their legal sex on official
documents
-
government funding for sex affirmation treatment and medical treatment for
intersex people
-
increased funding for organisations working in the LGBTI community
-
the creation of a specific department within the Australian Human Rights
Commission for sexual orientation, sex and gender identity
-
the creation of a ministerial position to address these issues
-
the provision of a ‘not disclosed/ applicable’ option on forms
that ask for information about a person’s sex
-
federal legislation providing for equal rights in adoption, surrogacy, IVF,
and taxation
-
amending the federal Sex Discrimination Act to include protection on the
basis of ‘relationship status’ rather than ‘marital
status’
-
removal of government funding from organisations that discriminate against
LGBTI people.
A small number of comments were opposed to any
additional actions to protect and promote LGBTI rights. A few comments noted
that any other actions to promote rights should be balanced with freedom of
religion.
