Submission to the

Attorney-General’s Department

in response to the Discussion Paper

(September 2011) on the

Consolidation of Commonwealth

Anti-discrimination laws

01 February 2012

Acknolwedgements

The National LGBTI Health Alliance is the national peak health organisation for a range of organisations and individuals from across Australia that work in a range of ways to improve the health and well-being of lesbian, gay, bisexual, trans/transgender, intersex and other sexuality, sex and gender diverse (LGBTI) people and communities.

*

The Alliance gratefully acknowledges support for its national secretariat funding from the Australian Department of Health and Ageing.

*

This Report has been prepared by Jamie Gardiner (individual Alliance Member) and Sujay Kentlyn (Alliance Health Policy Officer) in consultation with Members of the Alliance, following a period of four weeks for Members to comment on a Consultation Draft.

*

The Alliance acknowledges the traditional owners of country throughout Australia, their diversity, histories and knowledge and their continuing connections to land and community. We pay our respect to all Australian Indigenous peoples and their cultures, and to elders of past, present and future generations.

*

PO Box 51 Newtown NSW 2042

Inquiries:

General Manager: Warren Talbot [Email address removed]

© National LGBTI Health Alliance, February 2012

Introduction: Who we are

  1. The National LGBTI Health Alliance was established by a number of organisations from across Australia that provide health-related programs, services and research targeting lesbian, gay, bisexual, transgender, intersex and other sexuality, sex and gender diverse people (LGBTI)[1].
  2. Alliance members have come together to work collaboratively to improve the health and wellbeing of people of diverse sexuality, sex and gender:
  • advocating with a national voice on the health and wellbeing needs of lesbian, gay, bisexual, transgender, intersex and other sexuality, sex and gender diverse people and communities;
  • building the capacity of our members to work with and for lesbian, gay, bisexual, transgender, intersex and other sexuality, sex and gender diverse people and communities.
  1. We work across a broad range of health areas, striving to improve LGBTI health in many different ways.
  2. We welcome the opportunity to comment on the CommonwealthDiscussion Paper.

Why we are interested in this Consolidation Project?

  1. The proposed Consolidation of Commonwealth Anti-Discrimination Laws is of vital concern to the National LGBTI Health Alliance for two reasons.
  2. The first, which we have in common with many groups, is the need for stronger, clearer, more effective laws against discrimination. So, as a body concerned about the health of LGBTI people, we are concerned that health service providers should not discriminate on the grounds of sexuality and/or diverse sex and gender in their employment practices and in their delivery of health services.
  3. Secondly, however, discrimination is not just a problem at the level of the delivery of services. Discrimination, or the prejudice underlying and giving rise to it, is an important social determinant of health. It is well documented that LGBTI community prevalence of depression and other illnesses is higher than average. This excess morbidity is best ascribed to “minority stress.” This in turn is created by the climate of prejudice against lesbian, gay bisexual, transgender intersex, and other people of diverse sexuality, sex and gender, that may affect their childhood, adolescence and mature years.
  4. An effective consolidated Anti-Discrimination Act, therefore, must be capable of dealing with discrimination at its source. To deal with the harm done by discrimination to individuals and communities is necessary, but it is not sufficient, however efficiently and effectively it is done. Both goals must be pursued for many years to come: eliminate the causes, and provide remedies against the consequences.

“Minority stress” and LGBTI excess morbidity

  1. In a recent submission the Alliance observed:[2]

“The elevated risk of suicide for LGBT people is not due to issues regarding sexuality or gender identity in and of themselves. The elevated risk is due to complex factors including mental illness and trauma suffered in response to exposure to heterosexism, homophobia and transphobia - all of which are pervasive and cause and contribute to social isolation, mental illness, substance abuse, poverty and homelessness for the victims.”

  1. While the above submission concerned suicide, the problem of ill health caused by discrimination is much more widespread, as was discussed in Meyer, IH, 2003, ‘Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: conceptual issues and research evidence’. PsycholBull, 129, 674–697.
  2. The role of “minority stress” is summarized in Well Proud as follows:[3]

Discrimination is bad for your health

“The prevalence of ongoing discrimination and marginalisation on the basis of sexuality and gender identity directly affects the health and wellbeing of many GLBTI people. This has been called ‘minority stress’ (Meyer, 2003), and effects are well documented, including poorer health outcomes, reduced social participation and engagement, and avoiding or delaying seeking care because of actual or fear of prejudice (see, for example, Leonard, 2002). In addition, a recent survey of prejudice-motivated violence against GLBTI Victorians showed that GLBTI people experience higher rates of harassment and abuse than the general population and that the threat of heterosexist violence is part of many GLBTI people’s everyday lives” (Leonard et al., 2008).

  1. Stigma and discrimination are a particular problem for people of diverse sex and gender. The Tranznation Report[4] found that 87.4% of respondents had experienced at least one form of stigma or discrimination; half reported being verbally abused or socially excluded; and a third had been threatened with violence. A third had received lesser treatment due to their name or sex on documents, as well as being refused employment or promotion, and almost a quarter had been refused services in other areas (p.60). Not surprisingly, there was a clear relationship between experiencing stigma and discrimination, and depression (p.65).
  2. Transgender people experience much higher rates of depression than the general Australian population, and than LGBTI communities generally (p.26), and one in four respondents reported suicidal thoughts in the two weeks before they completed the survey (p.7).
  3. It should also be recognised that definitions of discrimination must address sex as well as gender and recognise the fact that not all people are male or female.Fully inclusive language should be used so that intersex and gender-nonconforming people are also protected.
  4. In its acute manifestations the response to minority stress affecting an individual is a matter for the primary care system, to manage the symptoms and build resilience. The real solution, of course, is to eliminate the discrimination that causes it. Eliminating discrimination requires an ability to deal with systemic discrimination, and a framework of powers and obligations which provides the Commission with the systemic tools to tackle the problem, and an Anti-Discrimination Act which creates a positive duty to eliminate discrimination and promote equality (see below, at Question 27.)
  1. LGBTI older Australians are particularly vulnerable with regards to discrimination. At the National LGBTI Ageing Roundtable (held in October 2011), it was noted that older LGBTI people have experienced a lifetime of prejudice and discrimination (which may include bullying, harassment, verbal, physical, psychological and/or sexual abuse) from government, agencies, faith-based organisations, health providers, businesses, LGBTI communities, families, friends, and individuals. This includes a fear of prejudice and discrimination, which may or may not be warranted. These experiences cause LGBTI older people to: remain in or return to the closet; be reluctant to reveal their sexual orientation and/or sex and/or gender identity to government agencies and service providers; and be reluctant to make

complaints when they experience prejudice or discrimination.

  1. Measures suggested at the Roundtable to combat discrimination experienced by older LGBTI Australians, especially in aged care settings, include:
  2. The comprehensive training of the aged care workforce in LGBTI cultural sensitivity
  3. Incorporating non-discrimination into compulsory Accreditation Standards
  4. No exemptions from Anti-Discrimination legislation for faith based organisations providing services
  5. Educating older LGBTI people about their rights and means of redress open to them.

The Questions particularly significant for this submission

  1. In the paragraphs that follow we comment on only a few of the Questions posed in the Discussion Paper. In relation to the others the Alliance has had the opportunity to view the submissions-in-progress of the Law Institute of Victoria and of the Human Rights Law Centre, and generally supports the direction of their recommendations.

Q7—How should sexual orientation and gender identity be defined?

Q8 – How should discrimination against a person based on the attribute of an associate be protected? (p22)

  1. The Alliance has previously pointed out, in its 26 November 2010 submission[5] to the Australian Human Rights Commission (AHRC) early in this project, how sexual orientation and gender identity should not be defined.
  2. A possible source of wordson these issuescould be the Yogyakarta Principles[6], with some important clarifications and augmentations.
  3. It is noted that the recent ALP National Conference adopted, as part of Chapter 11 - Australia's place in a changing world, in the section "Human rights", the commitment that “[u]nder Labor, Australia will support the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.” Domestically, the ALP National Conference adopted, as part of Chapter 10—Open and accountable government, in a section headed LGBTI place in a stronger democracy, the statement “Labor recognises that the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity provide a substantial guide to understanding Australia’s human rights obligations in relation to LGBTI Australians and their families.”
  4. The Yogyakarta Principles explain that:

Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.

  1. This definition focuses on the gender of the person to whom someone is attracted or with whom they are having a sexual or affective relationship. This definition may limit the legislation by not covering some related areas of discrimination where such discrimination is not based on the gender of the sexual partner.
  2. Health research, including but not limited to HIV research, makes a clear distinction between sexual attraction, sexual behaviour, and sexual identity.[7] Sexuality can be defined as:

Sexuality is a central aspect of being human throughout life and encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. While sexuality can include all of these dimensions, not all of them are always experienced or expressed. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors.[8]

For the purposes of health service delivery, and anti-discrimination laws, thisterm could be used to include all forms of consensual, lawful sexual activity.

Recommendation 1: Sexual Orientation should be defined in a broad way, such as the World Health Organisation definition of Sexuality. For the purposes of health service delivery, and anti-discrimination laws, this term could be used to include sexual orientation and all forms of consensual, lawful sexual activity.

  1. The Yogyakarta Principles define gender identity as follows:

Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical, or other means) and other expressions of gender, including dress, speech, and mannerisms.

  1. Intersexis not solely a form of ‘Gender Identity’. Intersex applies to personswhose biological sex cannot be classified as clearly male or female. An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is primarily about sex characteristics, although for some people it may also be a gender identity. Intersex should, therefore, constitute a separate protected attribute.
  2. The legislation should not be based on binary constructs of sex and gender, ie one that requires an individual to identify as exclusively either male or female. It should apply regardless of the biological sex characteristics of an individual, either at birth or at any subsequent period of their lives, and regardless of the sex of the person by law, as the states and territories have different criteria for registering a change of sex.
  1. In December 2011 the Australian Government demonstrated the value of this approach in making changes which allowed Australian passports to include references to persons other than “male” or “female”.
  1. The term “Expressions of gender” is wider than gender identity, and would provide necessary anti-discrimination protection in additional circumstances. In November 2011, the state of Massachusetts added “gender identity or expression” to State laws against discrimination in employment, housing, insurance and credit. [9]
  2. The term“Diversity of sex characteristics”should also be included. This term may include Intersex differences, chromosomal sex, endocrine activity, genitals and reproductive organs, menstruation, secondary sex characteristics (e.g. facial and body hair, musculature and bone structure, size of larynx and depth of voice, breasts, fat distribution, skin texture, stature, body proportions, etc.). While this particularly relates to intersex people, it may also be of relevance to others, such as pre- or non-operative trans people.
  3. This understanding of gender identity does not mention intersex people by name, but the statutory definition should do so, as an express inclusion, both for the avoidance of doubt and for transparency.

Recommendation 2: Gender Identity should be defined as: “each person’s individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical, or other means) and other expressions of gender, including dress, speech, and mannerisms”; and should include: Expressions of gender, and Diversity of sex characteristics.

Recommendation 3: Intersex is not solely a form of ‘Gender Identity’ and so should constitute a separate protected attribute, recognising the right of Intersex people to freely choose their own gender, and protecting intersex children from irreversible medical procedures without the full, free, and informed consent of the child.

  1. In using these definitions it is vital that the usual extensions are expressly stated: that an attribute includes an assumption (whether or not accurate) that a person has the attribute, that it includes that a person had or is thought to have had the attribute, that a person is associated with a person who has the attribute, or that a person has characteristics associated with the attribute.
  2. In the formulation of the Equal Opportunity Act 2010 (Vic), s. 7(2):

Discrimination on the basis of an attribute includes discrimination on the basis—

(a)that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b)of a characteristic that a person with that attribute generally has;

(c)of a characteristic that is generally imputed to a person with that attribute;

(d)that a person is presumed to have that attribute or to have had it at any time.

  1. The Victorian Act also includes, as an attribute, in s. 6(q), “personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes”.

Recommendation 4: Extensionsshould be expressly stated: that an attribute includes an assumption (whether or not accurate) that a person has the attribute, that it includes that a person had or is thought to have had the attribute, that a person is associated with a person who has the attribute, or that a person has characteristics associated with the attribute.

Question 22. How might religious exemptions apply in relation to discrimination on the grounds of sexual orientation or gender identity? (p40)

  1. This question, on page 40, concludes a brief discussion, headed “Exemptions for religious organizations,” which begins with paragraph 161:“The Government does not propose to remove the current religious exemptions, apart from considering how they may apply to discrimination on the grounds of sexual orientation or gender identity”.
  2. The Alliance notes that many government-funded services are delivered by faith-based organisations, particularly in the health and aged care sectors. For example, nationally, the providers of residential [aged] care services are religious organisations (28.5%), private operators (27.9%), community-based providers (16.8%), charitable organisations (15.5%), local government (2.3%) and state government (9%)(p.10).[10]Exemptions for such organisations from anti-discrimination legislation sends the message to LGBTI people that it is not safe for them to reveal their sex and/or gender identity, sexual orientation, or relationship status to all faith-based service providers, even if some of those organisations do not choose to discriminate. Most LGBTI people and organisations feel very strongly that organisations receiving taxpayer funds to provide services should not be allowed to discriminate. As one participant at the Sydney Multi-Stakeholder forum said, “This means that my taxes fund organisations that discriminate against people like me – and that’s just not on”(18/11/2011).

Religious exemptions

  1. The Alliance acknowledges the Government’s position on the maintenance of existing religious exemptions to anti-discrimination laws.
  2. The Alliance does not agree that blanket exemptions are appropriate. The human right to freedom of religion is not a peremptory norm of international law, and has the same status as other human rights.