Homosexual Histories Conference 2014 - Pride History Group

1 Acknowledgement of traditional owners

I would like to acknowledge the Gadigal people of the Eora Nation, the Traditional Owners of the land on which we are gathered and pay my respects to their elders, both past and present, and extend that respect to other Aboriginal people present.

2 Introduction

Thank you for the warm welcome. Thank you also for the invitation to speak today. It is an honour to give this opening address at the 2014 Homosexual Histories Conference. I note the important vision that the Pride History Group holds in ensuring that the lives, contributions and stories of lesbian, gay, bisexual, transgender and intersex Australians are remembered and preserved as part of the rich tapestry of history in our country. 

3 A Quick 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.

The Commission also recognises that terminology is strongly contested. Issues concerning sexual orientation are quite different to issues concerning sex and/or gender identity.

Keeping this in mind, for the purpose of today’s speech I will use lesbian, gay, bisexual, trans* and intersex, or LGBTI, as a recognised umbrella term which I intend to be inclusive of all sexual orientations, sex and genders. I will use the term sexual orientation, gender identity and intersex status or ‘SOGII’, to refer to protections in Australian Law.

4 Overview

I have been asked here to speak on my role in what we historically referred to as ‘homosexual law reform’ in Australia.

I am pleased to reflect on my experience in this space from many years ago.  I do so in full acknowledgement that my work in this area is quite small compared to many of the contributions profiled this conference. Your program of activity for the next few days is an impressive reminder of the magnitude of effort and commitment to social and legal reform on the issues of SOGII in Australia.

My contribution to legislative reform in Australia represents two bookends to the current story: one occurred in 1975 and the other almost three decades later in 2013. Today I will speak briefly on both of these experiences; the decriminalisation of sexual activity between consenting adult men in the ACT in the 1970s, and last year’s  changes to the Sex Discrimination Act 1984, which introduced protections against discrimination on the basis of sexual orientation, gender identity and intersex status in federal law. In addition I want to offer some specific insight into the latest reform of the SDA Amendment Act (Sexual Orientation, Gender Identity and Intersex Status, or SOGII) in 2013.

5 The Australian Human Rights Commission

I will start with a brief overview of the Commission’s role in SOGII Human Rights.

My contribution today reflects our commitment at the Australian Human Rights Commission to protect the human rights of everyone living in Australia.

The legal instruments we use to carry out these tasks include the four anti-discrimination laws, and the Australian Human Rights Commission Act 1986 which requires us to consider those human rights provided for in certain international conventions and declarations to which Australia is a party.

At the Australian Human Rights Commission, the President, my five commissioner colleagues and I are committed to the protection of human rights for everyone. That means everyone, no matter what their gender identity or sexual orientation, their disability, how old they are, or how frail and ill they have become.

Our contemporary understanding and practice of human rights comes from the basic document, the Universal Declaration of Human Rights 1948.

Note the word “Universal”. Human rights are for everyone.

A person’s rights do not diminish with age or disability nor are they lesser for people of diverse sexual orientations or gender identities.

As the Commissioner responsible for age and disability I advocate all these rights.

6 International human rights framework

Article 2 of the Universal Declaration on Human Rights makes it clear that human rights apply to all people in the world. It states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

SOGII rights are ultimately about the equal application of existing human rights to everyone. Specifically, the equality and non-discrimination requirements provided by international treaties apply to all people, regardless of sex, sexual orientation and gender identity or ‘other status’.

Australia’s human rights position is in many ways strong, starting with our support in 1948 for the Universal Declaration and the leadership role played by Bert Evatt as Australian Foreign Minister in the drafting of this foundation document.

Article 26 of the International Covenant on Civil and Political Rights requires States to legislate to prohibit discrimination and to protect all persons against discrimination “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The phrase “other status” has been interpreted by human rights treaty bodies to include attributes such as age, disability, and sexual orientation.

The United Nations Human Rights Committee has emphasised the obligation on all countries which are parties to the International Covenant on Civil and Political Rights to provide “effective protection” against discrimination based on sexual orientation.

The Committee on Economic, Cultural and Social Rights has also recognised that “gender identity is recognized as among the prohibited grounds of discrimination”.

Often we can get lost talking about the mechanics of legal and policy change. Today I want to talk to you as well about the role of partnership between the community and parliament. I hope that my experience might offer some insight into our past and might also provide some signals for how we can move forward to strengthen and extend human rights reforms.

7 My Story

I am in some senses an unlikely candidate as an advocate for homosexual law reform. As a young heterosexual woman coming of age in post war Australia, educated in a strict and conservative catholic environment, I really didn’t know much about homosexuality until well into adulthood. In fact we were not taught much about sexuality in general (our own or anyone else’s). In this sense I was very much the product of my generation.

It was at Sydney University that I was first introduced to the concept of homosexuality. My first exposure to this new information was through the term ‘camp’.

As I recall the phrase camp as a row of tents, was the term used to refer to a certain type of man. It was not for us a particularly negative reference, perhaps more one that suggested a certain sophistication on the part of the person using it.

In my very limited experience these men were often stylish and culturally informed. Beyond that I only understood that they were, unfortunately for me, not interested romantically in girls.

I see now that the word “camp”, like many identity constructs over time had both a positive and negative impact on its recipients. For some it was used as an insult to men who were suspected or known to be homosexual. For others it was a term of affection, and even a secret code that allowed homosexual men to identify each other or talk fondly to or of one another.

For me it was a way of understanding difference.

My repertoire in understanding difference evolved over the next several years. Specifically I realized how “difference” could be used to justify unfair discrimination and to fuel damaging attitudes.

So while at that time I would not have fully appreciated the concepts of sexual and gender fluidity as I do now, I did understand the concept of “fair”.

“Fairness” and the responsibility to pursue it was one of the positives I took from my catholic education.

My adult education about fairness and society and the law was significantly accelerated through my connection to the women’s liberation movement, which got underway in Australia in the late 1960’s. In fact it was through the language of feminism and equality that I understood the underlying human rights principles in the debate around decriminalisation of homosexual sexual activity in Australia.

This recognition led me to the perhaps unlikely place of supporting a motion for decriminalisation in Australian Capacity Territory Legislative Assembly proceedings of June 1975.

In my preparation for today I read over the transcripts of the debate in which I heard myself apply the knowledge and logic I had acquired to the issue at hand. I want to share with you this quote from my participation in the proceedings:

It seems intolerable that behaviour that does no social harm has been regarded as criminal and the people who perform it are harassed in this fashion when much social behaviour that is harmful has remained outside the effects of the law. [1]

This rational and respectful position seemed to me the only one a reasonable and fair minded person could have. My approach at that time however, was not widely supported. As a direct result of my stance in this debate I was accused publicly and vociferously of supporting incest and advocating paedophilia. I wasn’t. The reality was far less controversial. I was arguing for the classic rights of equality before the law and the right to privacy, issues that I have become increasingly connected with through my work at the Commission in recent years.

I don’t want to overstate my role in the battle for decriminalisation of homosexuality in Australia. It was a very modest one. The real work for decriminalisation was driven mainly through the sheer grit and determination of staunch community activists, such as many of you attending the conference today. It was also driven and supported by highly engaged legislators such as my colleague Don Dunstan, in South Australia, often at great personal and political cost. 

I recall too, that support also came from unlikely allies. I refer to the conservative former Prime Minister John Gorton, who on 18 October 1973, moved in the Federal House of Representatives:

That in the opinion of the House homosexual acts between consenting adults in private should not be subject to criminal law. [2]

As most of you know, the journey to full decriminalisation continued for decades after the motions supported by myself, Don Dunstan, John Gorton and others. As I am sure most of you are also acutely aware, it was not until 1997 that Tasmania became the last Australian state to decriminalise sex between consenting adult men in private. [3]

This final achievement was a major victory for human rights in general and for equal rights to sexual and gender identity in particular.

Further, the work of Australian activists in the now infamous case of Toonen v Australia, saw the Human Rights Committee confirm that the reference to sex and the right to privacy in the International Covenant of Civil and Political Rights (ICCPR) includes sexual orientation. This confirmation has been crucial to progressing SOGII rights internationally. [4]

What these diverse efforts, from activists, legislators, brave individuals and community supporters demonstrate is that in the journey to full realization of SOGII Human Rights each of us has a contribution to make, and partnership is powerful.

The experiences I am sharing with you today highlight I hope, the constructive change that can occur when the energy and passion of activists join with power of legislators to work together.

8 The Aged Care Reforms

I want to finish by discussing briefly my second direct interaction with SOGII human rights and legislative reform in Australia.

The right of everyone to aged care that is adequate and accessible, and is fully respectful of human rights, is a top priority for me as Age Discrimination Commissioner.

9 Demographics and the growing importance of aged care

With Australians living 25 years longer than they did a century ago, inevitably we have a rapidly growing need for health services of all kinds. 

As a society, we should be planning not only the facilities but also the knowledge and the workforce to ensure that we can provide properly as older people need care, and that the provision is based firmly on human rights principles.

10 The SDA Amendments

We are seeing some progress. In the final days of the last parliament, the Labor Government’s aged care reforms were legislated and funded.  This set of laws is proceeding under the new government.

The package is a 10 year reform program to create a system that provides older Australians with more choice, control and easier and fairer access to a full range of services. The reforms shift the entirety of aged care to a consumer focus to allow greater choice and participation for older people and their carers. It will provide newly appropriate services to older LGBTI people.

Importantly nationally, we also now have new protections. From 1 August 2013 it became unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law. Same-sex couples are now also protected from discrimination under the definition of ‘marital or relationship status’.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) or the ‘SDA Amendment Act’ inserts these new grounds into the ‘Sex Discrimination Act 1984 (Cth)’.

Although most states and territories already had some form of protection against discrimination on the basis of sexual orientation and gender identity, the recent SDA Amendment Act has introduced more inclusive definitions in sexual orientation and gender identity. It addresses gaps such as a lack of coverage for acts or practices of the federal government. It also includes the new ground of intersex status.

Importantly, and historically, the amendments change the “religious exception” provision of the Sex Discrimination Act 1984. These amendments remove the ability of Commonwealth government funded, church based aged care providers to discriminate against those receiving care on the basis of their sexual identity.

I want to highlight for you here today the practical benefits of these recent amendments to the SDA.

The reforms mean that no providers should exclude or treat in any inferior way individuals with minority sexual identities seeking care. Should any provider persist in such discrimination despite the law, the discriminated against individual now has redress.

Individuals who believe they have been discriminated against on the basis of these new grounds can make complaints to the Commission. If any of you become aware of older people being discriminated against in access to, or delivery of aged care, because of their sexual identity, I urge you to discuss with them the possibility of bringing a complaint under the new provisions to the Commission.

This step could contribute towards an equal society in two ways.

First the individual may well get a satisfactory outcome from the conciliation, that is the discriminating behavior may cease and be replaced by respectful and inclusive behavior.

Secondly, at the Commission we can understand from the complaints data, how the new provisions are being used, and how effective they are in preventing this form of discrimination.

Those providing the care, the aged care workers especially, need to be trained and supported to understand these special needs and to deliver care that always respects the human rights of those they are assisting.

As a part of the aged care reforms, in 2012 the then government launched the National Lesbian, Gay Bisexual Transgender and Intersex Ageing and Aged Care Strategy. This strategy contains the principles of “inclusion, empowerment, access”.

I approached this achievement of non-discriminatory aged care in much the same way as I approached the issue of decriminalisation in the ACT Legislative Assembly three decades ago: through the lens of fairness.

A word of warning: we now have legal protections in place, but we all know that vigilance and activism must continue to ensure these protections are working and older LGBTI people have their rights fully respected.

11 Conclusion

In preparation for today I was referred to the reflections of Alan Hollinghurst in his review of the Diaries of E M Forster. In his review Hollinghurst pointed to ‘the silences in gay lives’ in the written record [5]. As a recipient of Victorian England’s laws and social orders, Australia’s post-colonial history has also been one in which many of the stories of Australian gay lives have been hidden from public view. Their holders at the time risked terrible retribution, both from society and the State.

As a consequence, and to borrow words from another famous author, the ‘love that dare not speak its name’ [6] risks a narrow remembrance through the lens of legal and medical discourse as crime and sickness.  While this institutionalized injustice should be remembered and documented, it is vital that the resilience, hopes and of course, loves that make up the lives of our fellow citizens are not overlooked in the process.

I hope my own experiences of participation in legislative and policy reform in the area of SOGII human rights provides a useful example. It is but one example of acting on the sense of collective responsibility we hold as a society to progress the human rights of everyone, including those with minority sexual orientation, gender identity or intersex status.

To do this effectively, and out of a sense of fairness and historical truth, we must also find ways to remember and celebrate the lives and lived experience of those LGBTI people who have come before us.

The works of conferences such as this one I am opening today ensure the protection and visibility of many wonderful lives and stories.

Thank you. 

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[1] See: Hansard, Australian Capital Territory Legislative Assembly Proceedings, Tuesday, 22 July 1975, pp. 43-50.
[2] See: 1-1.1 page 4, ‘Parliamentary Debates – Law Change’. See also: Parliamentary Debates, House of Representatives, 18 October 1973, pp. 2327-35
[3] Banks, R. Treatment of convictions for consensual sexual activity between adult males, Issued by the Tasmanian Anti-Discrimination Commissioner, Level 1, 54 Victoria Street, Hobart  Tasmania, 31 October 2014.
Accessed at: http://www.antidiscrimination.tas.gov.au/__data/assets/word_doc/0003/298380/Treatment_of_historic_convictions_for_consensual_sexual_activity_between_adult_males_-_Word_version.DOC 
[4] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92(1992).
[5] Alan Hollinghurst, Poor Dear, How She Figures! The Journals and Diaries of E.M. Forster Volumes I-III edited by Philip Gardner Pickering and Chatty, 813 pp. February 2011. Accessed: http://www.lrb.co.uk/v35/n01/alan-hollinghurst/poor-dear-how-she-figures
[6] Lord Alfred Douglas, Two Loves (1894 poem) used in Oscar Wild’s obscenity poem