Section 12 - Other actions that could be taken by the Australian Government to protect LGBTI people in Australia - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

Addressing sexual orientation and sex and/or gender identity discrimination

Consultation Report

2011


Section 12 - Other actions that could be taken by the Australian Government to protect LGBTI people in Australia

The consultation received a number of suggestions about other ways in which the Australian Government could protect the human rights of LGBTI people in Australia. Many participants argued that while anti-discrimination legislation is an important step towards equality, it is essential that it is accompanied by other actions. Suggestions were often informed by personal experiences of discrimination.

The consultation received suggestions on the following issues which are discussed further below:

  • public education regarding issues facing LGBTI people
  • health services
  • marriage equality
  • government funding for support services
  • national LGBTI representative
  • identity on official documents and Sex Files
  • aged care
  • prisons
  • adoption rights.

12.1 Public education

The majority of the comments supporting new federal discrimination protections also argued that discrimination and vilification experienced on the basis of sexual orientation or sex and/or gender identity could be reduced through public education about these issues.[246] For example the National LGBTI Health Alliance argued that:

Legislation is crucial but will not change ‘hearts and minds’. Federal antidiscrimination legislation must be accompanied by a targeted national action program that includes community education to reduce transphobia, homophobia and discrimination against intersex people and to empower LGBTI people to assert their rights and respond effectively to discrimination.[247]

They added that education programs should be developed in conjunction with LGBTI community organisations.[248]

Many participants called for a federally funded public education campaign as well as the development of education programmes specifically for schools, workplaces and the public sector.[249] For example:

I would like to see efforts made to change community attitudes towards LGBTI people, especially in workplaces and schools. Attitudinal change is difficult to bring about, but without increased efforts to decrease discrimination, harassment and vilification there will be no decrease in the incidence of depression, drug abuse, self-harm and suicide among LGBTI people.[250]

Participants also expressed the need to ensure that all LGBTI people are informed of and understand their rights and the appropriate avenues available to them if they have been discriminated against.[251]

The consultation heard that young LGBTI people face distinct challenges, especially at school.[252] Comments suggested that the new national curriculum for Australian schools should include education about all forms of sexual orientation and sex and/or gender identity. For example, comments made by roundtable participants included:

Education should be started early that there are males and females and some people do not fit into those categories. Discrimination is learnt. When I was in sex education in high school we were taught that there were males and females. It was confusing as I was obviously not male or female.[253]

Children are not taught about the occurrence of intersex births and neither are they taught about the occurrence of intersex, sex and/or gender diverse people. This ill-prepares children for the real world where they may encounter such people. Children themselves who are intersex, sex and/or gender diverse are marginalised in such circumstances and made to feel shame about [the] way they are.[254]

A number of organisations stressed the importance of education on the needs of trans and intersex people for health and community service providers.[255] The current lack of understanding in this field was reported to be a barrier to accessing health care:

The practical result is that some sex and gender diverse people in the ACT either do not seek medical treatment, or choose not disclose their full medical history for fear of facing potential discrimination from ill-informed medical practitioners. This raises serious concerns on an individual level but also from the perspective of the need to protect and respect the human rights of all persons in Australia today.[256]

12.2 Health services

A number of participants raised concerns about the lack of access to appropriate medical care, especially for trans and intersex people.[257] For example, the WA Gender Project suggested that specialist medical centres for transsexual and intersex people should be established in each state and territory.[258]

Participants also raised concerns about medical professionals overlooking trans and intersex people for conditions that are generally understood to affect either men or women exclusively, such as ovarian cancer and prostate cancer. For example, the consultation heard:

We would like to avoid replication here of the well-known case of an American female-to-male, Robert Eades, who died of ovarian cancer because doctors refused to treat him for an ‘inappropriate’ disease. We suggest that any medical procedure recommended by an authorised medical professional should be recognised as eligible for treatment, and the gender restrictions be removed from the Medicare tables.[259]

A trans person who was registered male at birth and then transitioned legally to female will still have a prostate. However, Medicare only allows men to access services to do with prostate issues. Therefore those people cannot gain prostate screening or be entitled to surgery or treatment with regard to benign prostate hyperplasia or prostate cancer.[260]

Several participants advocated for better access to gender affirmation treatment.[261] Currently such costs are high and there are long waiting lists due to the lack of experienced doctors in this area. Some participants maintained that Medicare should cover the costs of gender affirmation treatment while others suggested low interest loans should be available.[262] For example, the Gender Centre argued that:

On the larger question of access to male-to-female affirmation (or reassignment) surgery, the greatest impediments are the bottleneck caused by their being only two surgeons practicing this surgery on a regular basis in Australia, and the excessive cost for the procedures ($25,000-$30,000 for surgery, without the added costs for electrolysis, hormone therapy and at least two years of psychiatric preparation).[263]

Some participants advocated for access to medical and surgical treatment for fully consenting young people with parental consent:

Australian adolescents are being denied timely access to critical medical treatment - with life-threatening and degrading consequences - and families are in distress - because of the effects of the current erroneous interpretation of Marion's Case, expressed in the cases of Re A and Re Alex, which incorrectly extended the definition of "Special Medical Procedure" to therapeutic medical treatment for young people who experienced intersex conditions; including transsexualism.[264]

Some participants also called for the cessation of non-therapeutic medical interventions on non-consenting intersex children.[265] For example:

[Organisation Intersex International Australia] affirms that the true sex of the child is determined by their own inner psychological perceptions and that the right of individual intersex persons to affirm their own sex identity without medical or governmental interference should be a basic human right.[266]

12.3 Marriage equality

The majority of consultation participants who favoured new anti-discrimination protections also expressed their support for marriage equality in Australia. Specifically, participants argued that subsection 5(1) of the Marriage Act 1961 (Cth)[267] should be amended so that all couples are able to marry.[268] Comments included:

The exclusion of same-sex couples from the legal definition of ‘marriage’ is key to their experience of discrimination and in contravention of Australia’s obligations under Article 2 and 26 of the International Covenant on Civil and Political Rights – Freedom from Discrimination. Amnesty International calls on the Australian Government to amend the Marriage Act 1961 to end discrimination, by allowing the marriage of Australian same-sex couples and permit the recognition of those same-sex married couples who formally united in marriage overseas.[269]

Legalise marriage, and not just for LGBTI people, but for ALL people, regardless of whether they are male, female, both, or neither.[270]

I support gay marriage. Why? Because it is an act of discrimination; it is discrimination pure and unadulterated. I would argue that the refusal to amend the Marriage Act is an act of discrimination. It is just as much discrimination as was a sign in a South African park or beach saying whites only.[271]

The Kingsford Legal Centre argued that marriage has a particular significance in our community and thus equal legal recognition to non-heterosexual couples is not sufficient:

While many may argue that providing the same legal recognition to same sex couples as opposite sex de facto couples is sufficient, we would argue this is not sufficient. Marriage has a particular significance in our community. Across all religions and belief systems, marriage is the way in which committed relationships have been recognised. For this reason, committed relationships between people in same sex relationships should also be recognised through marriage. There is a social meaning to marriage which does not equate to de facto relationship recognition.[272]

Participants argued that it would be a contradiction to provide federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity while federal laws continue to discriminate.[273]

Organisation Intersex International argued that marriage equality would remove discrimination against intersex people who are currently forced to be legally a man or a woman in order to marry:

In the matter of marriage rights if the law is changed to allow for same sex marriage people who are Intersex will still not be able to marry unless they agree to conform to male or female sex anatomies and effectively have their Intersex erased.[274]

Another participant noted:

Why should I be forced to take on a gender identity that I am not? That is like telling a female that she has to identify as a male in order to marry. I identify (quite rightly too) as Intersex. Why should I have to change my gender to marry?[275]

A number of comments expressed opposition to marriage equality asserting that it is inconsistent with religious beliefs.[276] For example, the Anglican Church Diocese of Sydney noted:

We commend the government for the introduction of legislative changes to offer privileges and protection to same-sex couples. But we do object to same-sex relationships claiming the name of the unique relationship which is marriage. We do not doubt that many of these relationships are committed, long-term and loving, but the fact is that they lack some of the fundamental characteristics that make marriage ‘marriage’, and thus should not claim this term to refer to their relationship.[277]

However, not all people were opposed to marriage equality on the grounds of their religious beliefs. One participant noted:

Despite the fact that I am a full member of the Uniting Church of Australia ... I fully support equality under the law for LGBTI people including the right to marry both legally and within the church.[278]

12.4 Government funding for support services

A number of participants argued that there should be more funding for organisations that provide support services to LGBTI people. For example:

There should be ongoing funding for LGBTI support services such as telephone support lines and health services.[279]

Funding for organisations to provide direct support for intersex, trans and other sex and gender diverse individuals and their partners, children, families and work colleagues. At a minimum there should be one fully funded Gender Centre to provide services to sex and gender diverse people in each capital city.[280]

Some participants specifically argued for funding to community legal centres to ensure that people know their legal rights.

Increased funding to Community Legal Centres is also imperative to enable advice and representation for people complaining of discrimination and public interest-based organisations should be given standing to assist people make complaints under Federal anti-discrimination law.[281]

12.5 National LGBTI representative

Several comments called for a national representative responsible for sexual orientation and sex and/or gender identity. Some participants suggested the appointment of a federal minister,[282] while others suggested the appointment of a Commissioner within the Commission.[283]

Participants argued a Commissioner should be responsible for increasing education and awareness of LGBTI issues in the wider community, monitoring human rights abuses, discrimination and vilification, research, legislative reform and facilitating outreach services.[284] The National LGBTI Health Alliance also noted that there is no government-funded peak body for LGBTI people:

The Australian Government currently provides support to various equity groups, such as people with a disability, young people, seniors, women, culturally and linguistically diverse people, Aboriginal and Torres Strait Islander people, and people in Regional and Rural areas. Such support is provided through a Minister/Parliamentary Secretary, an Advisory Group, Departmental Unit, National Strategy/Plan and a funded NGO peak body. None of this government support is currently provided to people of diverse sexual orientations, and sex and/or gender diverse people. The National LGBTI Health Alliance is the peak body of organisations working to promote the health and wellbeing of LGBTI people. It is funded entirely from community raised money. Government support should be made available to the LGBTI community as a matter of extreme urgency.[285]

12.6 Identity on official documents and Sex Files

A significant number of participants expressed concern about the requirements for changing sex on legal documents.

Issues relating to changing the legal recognition of sex in documents and government records are discussed in detail in the Commission’s 2009 paper Sex Files.[286] Many participants raised issues that were considered by Sex Files and called on the Federal Government to implement the recommendations made in that report.[287]

Participants were particularly concerned about the requirement that a person must have had sex affirmation surgery[288] and the requirement that a person not be married[289] in order for them to change their legal sex.

The consequences of a person not being able to change their legal sex are considerable. A number of people raised issues of not being identified as the correct sex on passports, flight boarding passes, in hospitals, and by government agencies including Centrelink and Medicare. One person commented:

I changed my name more than ten years ago, but the trade certificate that I obtained was in my previous (female) name. I contacted the institution and asked that they re-issue the document in my new (male) name but they refused to do so. When I contacted the NSW Anti Discrimination Board I was advised that because the provision of a certificate was not the provision of a service, that there was nothing I could do. This has meant that the only way that I can verify that I’ve got any qualifications for a new job is to ‘out’ myself at the interview.[290]

Intersex people reported similar challenges as they are unable to indicate legally that they are intersex.

More times tha[n] I can count I have encountered various forms that do not allow me to correctly indicate that I am Intersex. Some of these go on to threaten punitive action for not providing correct information. This is quite stressful as I am continually not given the option to tell the truth, and am treated [differently] if I don’t tell the truth. It wears you down after a while.[291]

12.7 Aged care

Several community organisations maintained that work to increase awareness of LGBTI issues needs to be done in the aged care sector.[292] Some participants favoured LGBTI specific aged care services and facilities, while others advocated for educating mainstream service providers.[293]

Indeed, the transition process taking place towards Federal responsibility for aged care provides a significant window of opportunity for the [Australian Human Rights Commission] and the Federal government to ensure maximum protection from discrimination and well targeted education around certainty and safety for GLBTI aged care consumers.[294]

GRAI (GLBTI Retirement Association Incorporated) advocated for the following specific measures:

  • aged care sector training and performance monitoring be modified to specifically address GLBTI needs
  • GLBTI issues be included in all relevant training packages and best practice performance criteria
  • the promotion of ‘safe haven’ reporting mechanisms, for example someone within a care establishment clearly identified as GLBTI friendly and informed.[295]

12.8 Prisons

Some participants raised concerns about the treatment of trans and intersex people in prisons. One participant commented:

People who happen to be transgendered and who happen to be imprisoned (possibly on some unrelated matter) should not be incarcerated with groups of whatever gender they happened to be at birth. There should be a consultation process to determine where they are held and their safety should be the foremost concern in this process.[296]

The Tasmanian Council for Sex and Gender Diverse People argued that a trans or intersex person should not be forced to be incarcerated with people who are of the same sex as they were at birth or forced into isolation:

Trans people should be put in prisons of the gender they are presenting as. Current policies also tends to require that they be put into isolation and are not allowed to mix with other prisoners. I can see that in some situations that would be for their protection. However, that should be their choice. They should not be treated differently from other prisoners.[297]

12.9 Adoption rights

Some participants advocated for equality in adoption, surrogacy and IVF.[298] For example, Amnesty International Australia argued that:

[a]doption by same-sex parents is not contrary to a child’s best interests. There is no evidence to suggest that a child would be harmed by being raised by same-sex parents.[299]

The Tasmanian Council for Sex and Gender Diverse People recommended that parenting and adoption laws for same sex couples should be equal to the laws that apply to heterosexual and married couples.[300]

12.10 Other suggestions

A wide range of additional suggestions were also made by participants, such as to:

  • include the right to equality in our Constitution or a federal human rights Act[301]
  • implement appropriate policies in all Commonwealth agencies to support LGBTI people[302]
  • ensure a commitment by the public sector to employ and support LGBTI people[303]
  • include LGBTI status in the census so the government cannot dismiss the LGBTI community as only 2% of the population[304]
  • appoint a teacher in every school as a ‘safe teacher’ who can support young people who are being bullied[305]
  • provide ongoing training and support to increase understanding about rainbow families in family mediation and child support services etc[306]
  • remove discrimination by providing equal age of consent to heterosexual and homosexual acts in Queensland[307]
  • remove discrimination in employment for sex and/or gender diverse people wanting to work with children[308]
  • eliminate the ‘homosexual advance defence’ in all Australian jurisdictions[309]
  • allow intersex people to play sport competitively as a male or female, depending on what their physical physique is most closely associated with.[310]

[246] See, for example, Tasmanian Council for Sexual and Gender Diverse People, Comment 33; {Also} Foundation, Comment 84; Freedom! Gender Identity Association, Comment 90; Redfern Legal Centre, Comment 91; South Australian Equal Opportunity Commission, Comment 110, Victorian Equal Opportunity and Human Rights Commission, Comment 121.
[247] National LGBTI Health Alliance, Comment 112, p 1.
[248] See above, p 10.
[249] See Name withheld, Comment 9; Tasmanian Council for Sexual and Gender Diverse People, Comment 33; Name withheld, Comment 51; {Also} Foundation, Comment 84; NSW Gay and Lesbian Rights Lobby, Comment 94; Hawkesbury Nepean Community Legal Centre, Comment 97.
[250] Name withheld, Comment 9, p 3.
[251] See {Also} Foundation. Comment 84; Hawkesbury Nepean Community Legal Centre, Comment 97; Youth Affairs Council of Victoria, Comment 152.
[252] Youth Affairs Council of Victoria, Comment 152, p 9.
[253] Sydney roundtable on sex and/or gender identity, 28October 2010.
[254] Sex and Gender Education Australia and Australian Health and Education Centre, Comment 73, p 15.
[255] Freedom! Gender Identity Association, Comment 90; National LGBTI Health Alliance, Comment 112.
[256] Fiona David and Peter Bailey, Comment 147, p 3.
[257] See, for example, The Gender Centre, Comment 48; Redfern Legal Centre, Comment 91; WA Gender Project, Comment 125.
[258] WA Gender Project, Comment 125, p 11.
[259] The Gender Centre, Comment 48, p 3.
[260] Sex and Gender Education Australia and Australian Health and Education Centre, Comment 73, p 13.
[261] See, for example, Lara Kacelnik, Comment 58; Name withheld, Comment 120; Rachel Wallbank, Comment 122; Inner City Legal Centre, Comment 142.
[262] Melbourne roundtable on sex and/or gender identity, 9 November 2010.
[263] The Gender Centre, Comment 48, p 4.
[264] Rachel Wallbank, Comment 118, p 4. See also A Gender Agenda, Comment 107, p 24.
[265] See, for example, Gina Wilson, Comment 8; Organisation Intersex International, Comment 82; Freedom! Gender Identity Association, Comment 90; National LGBTI Health Alliance, Comment 112; Inner City Legal Centre, Comment 142; A Gender Agenda, Comment 107.
[266] Organisation Intersex International, Comment 82, p 4. See also Inner City Legal Centre, Comment 142.
[267]Marriage Act 1961 (Cth), s 5, amended by the Marriage Amendment Act 2004 (Cth). The Family Law Act 1975 (Cth) contains a similar version of marriage, s 43(1)(a).
[268] See, for example, David Chad, Comment 5; Dr Paul Howat, Comment 7; Gina Wilson, Comment 8; Julie Webster, Comment 15; Queensland Association for Healthy Communities, Comment 43; Sally McMaster, Comment 52; Lara Kacelnik, Comment 58; Name withheld, Comment 68; Name withheld, Comment 69; OUTthere, Comment 72; Name withheld, Comment 75; Name withheld, Comment 79; Mark Le Gros, Comment 83; Name withheld, Comment 85; Amnesty International Australia, Comment 89; Redfern Legal Centre, Comment 91; NSW Gay & Lesbian Rights Lobby, Comment 94; Hawkesbury Nepean Community Legal Centre, Comment 97; Name withheld, Comment 104; Women’s Legal Centre (ACT & Region), Comment 106; Anti-Discrimination Board of NSW, Comment 115; Anti-Discrimination Commission Queensland, Comment 131; Kingsford Legal Centre, Comment 149; Name withheld, Comment 136.
[269] Amnesty International Australia, Comment 89, pp 4-5.
[270] Name withheld, Comment 79, p 3.
[271] David Chad, Comment 5, p 1.
[272] Kingsford Legal Centre, Comment 149, p 6.
[273] Anti-Discrimination Board of NSW, Comment 115. See also David Chad, Comment 5; Name withheld, Comment 75.
[274] Organisation Intersex International, Comment 82, p 7.
[275] Romanadvouratrelundar Starfield, Comment 27, p 3.
[276] Tasmanian Baptists, Comment 101; Organisation of Rabbis Australasia, Comment 100; Australian Christian Lobby, Comment 87; Anglican Church Diocese of Sydney, Comment 76; Presbyterian Church, Comment 56; Name withheld, Comment 49; Family Voice Australia, Comment 41.
[277] Anglican Church Diocese of Sydney, Comment 76, p 2.
[278] Name withheld, Comment 136, p 1.
[279] Sydney roundtable on sexual orientation, 28October 2010.
[280] A Gender Agenda, Comment 107, p 24.
[281] Hawkesbury Nepean Community Legal Centre, Comment 97, p 2.
[282] Name withheld, Comment 12.
[283] Freedom! Gender Identity Association, Comment 90.
[284] See Gina Wilson, Comment 8; Organisation Intersex International, Comment 82.
[285] National LGBTI Health Alliance, Comment 112, p 10.
[286] Australian Human Rights Commission, Sex Files: the legal recognition of sex in documents and government records (2009). At: www.humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 25 March 2011).
[287] Above.
[288] National LGBTI Health Alliance, Comment 112. See also Fiona David and Peter Bailey, Comment 147A; Freedom! Gender Identity Association, Comment 90.
[289] See, for example, The Gender Centre, Comment 48; Name withheld, Comment 55; Freedom! Gender Identity Association, Comment 90; Name withheld, Comment 120.
[290] A Gender Agenda, Comment 107, p 15.
[291] Romanadvouratrelundar Starfield, Comment 27, p 4.
[292] See, for example, Colleen Cartwright and Tania Lienert, Comment 31; Dr Jo Harrison, Comment 78; Hawkesbury Nepean Community Legal Centre, Comment 97; A Gender Agenda, Comment 107; GRAI (GLBTI Retirement Association Inc), Comment 140.
[293] See, for example, Colleen Cartwright and Tania Lienert, Comment 31; See also Dr Jo Harrison, Comment 78.
[294] Dr Jo Harrison, Comment 78, p 2.
[295] GRAI (GLBTI Retirement Association Inc), Comment 140, p 3.
[296] Name withheld, Comment 54, p 2.
[297] Romanadvouratrelundar Starfield, Comment 27B, p 2.
[298] Tasmanian Council for Sex and Gender Diverse People, Comment 33; Name withheld, Comment 79; Amnesty International Australia, Comment 89.
[299] Amnesty International Australia, Comment 89, p 5.
[300] Tasmanian Council for Sex and Gender Diverse People, Comment 33.
[301] Melbourne roundtable on sexual orientation, 9 November 2010; Name withheld, Comment 1; Women’s Legal Centre (ACT & Region), Comment 106; Erinyes Autonomous Activist Lesbians, Comment 143.
[302] Tasmanian Council for Sex and Gender Diverse People, Comment 33.
[303] Name withheld, Comment 51.
[304] Melbourne roundtable on sexual orientation, 9 November 2010.
[305] Above.
[306] Above.
[307] Freedom! Gender Identity Association, Comment 90; Name withheld, Comment 104. See Criminal Code 1995, ss 227, 229; See also Criminal Code Act 1899 (Qld), ss 229B, 208.
[308] See, for example, Anti-Discrimination Act 1991 (Qld), s 28; as cited in Freedom! Gender Identity Association, Comment 90; Romanadvouratrelundar Starfield, Comment 27.
[309] Melbourne roundtable on sexual orientation, 9 November 2010. For an explanation of the Homosexual Advance Defence see Santo De Pasquale, ‘Provocation and the Homosexual Advance Defence: The Deployment Of Culture As A Defence Strategy’ (2002) 6 Melbourne University Law Review 110.
[310] Mark Le Gros, Comment 83.