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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.