Australian Civil Liberties Union
From Your Rights 2001
(Chapter 18)
The law as it relates to discrimination in Australia on the basis of sexual orientation or gender identity.
A survey conducted by the Victorian Gay and Lesbian Rights Lobby revealed that approximately two thirds of the members of the above groups continue to experience harassment and assault on the streets and almost half encounter discrimination in the workplace. In a large number of cases, there was little awareness of protection afforded by legislation or of the avenues available to seek redress.
Of those who did lodge complaints, many subsequently withdrew them due to a variety of reasons. Some people dealt with complaints through policies put in place by their employer, others negotiated outcomes through conciliation which included job reinstatement, an apology, policy changes and compensation. Some complainants however, believing that the conciliation process had failed them and unaware of alternative options, withdrew their complaints because they believed they could not afford a lawyer to pursue their case.
Those who did not
make a complaint stated that they felt that the matter was not serious enough, or that
they would prefer to deal with it themselves. Some
felt that discrimination would be too difficult to prove, and that pursuing a formal complaint would lead to work
repercussions and such an invasion of privacy that the experience would be worse than the
discrimination they had endured.
What is discrimination? Direct and Indirect Discrimination
Direct: When someone is treated less favourably than another in the same or similar circumstances because of a certain characteristic, whether that be their sexuality, race, physical or intellectual disability etc.
Indirect: When there is a requirement which at
first sight seems fair, but which in fact is unreasonable and treats one group of people
less favourably than another because of the characteristics listed above.
The definition of terms used to describe sexual orientation and gender identity issues is inconsistent within Australia and throughout the world. Confusion is widespread among legislators, the general public and even the groups involved, leading to a great deal of acrimony and debate over semantics. Since definitions now form a part of current legislation, personal preference must take second place to clarity in understanding the definitions most commonly used
Discrimination against people who differ from mainstream society by virtue of their sexual orientation or gender identity involves six distinct groups.
Discrimination on the Basis of Sexual Orientation or Preference
Those discriminated against by virtue of their "sexual orientation" or "sexual preference" may be divided into three groups. Homosexuality describes a person's attraction to partners of the same sex. If you are a male attracted to males, you are "gay". If you are a female attracted to females, you are "lesbian". Members of a third group who may be attracted to a particular person regardless of their sex are known as "bisexual", and do not consider themselves to be either gay or heterosexual.
Although reliable statistics are difficult to obtain relating to the number of gays, lesbians and bisexuals in the community, current estimates indicate that as many as one in ten Australian citizens may belong to the above three groups. Given the self-censorship or "invisibility" strategy practised by many people to avoid harassment and discrimination, the figure is likely to be a lot higher.
Discrimination on the Basis of Gender Identity
"Transgender" is a non-medical term adopted by people with "gender identity" issues which are not a matter of sexual orientation or preference, but a subjective conviction as to the gender they feel themselves to be, regardless of their chromosomal or birth sex.
The three main divisions within this group are:
People formerly known as "transvestites" who feel the need to dress as the sex opposite to their birth sex occasionally, but who accept their birth sex most of the time. The current, preferred designation is "cross-dresser".
Transgender people formerly known as "transsexuals" who also cross-dress, but are medically designated as having "gender identity disorder" - formerly known as "gender dysphoria". These men and women feel that they are "trapped in the wrong body", and often seek hormonal and "gender reassignment surgery" to bring their external appearance into line with the gender they feel themselves to be.
Intersex people (formerly known as "hermaphrodites") are born with indeterminate sexual characteristics. There are a large range of medical conditions associated with this group, the most common of which is "androgen insensitivity syndrome", either complete or partial. Many intersex people feel that they have unique problems which warrant their being known as a separate "intersex" group rather than "transgender".
"Drag Queens" should not be confused with "transgenders". This is a dress custom primarily associated with gay culture and entertainment, usually with humorous intent.
There are three main sources of anti-discrimination legislation in Australia:
International sources
Commonwealth legislation
State legislation.
International Sources
The Senate Inquiry into Sexuality Discrimination stated that the two most important international treaties relating to human rights are the International Convention on Civil and Political Rights (ICCPR) and to a lesser extent, the International Convention on Economic Social and Cultural Rights (ICESCR).
These acknowledge the existence of a range of rights, applicable to all peoples, such as the right to life, freedom from torture or degrading punishment, freedom from slavery, the right to freedom from arbitrary interference with privacy, the right to work, to fair remuneration, just working conditions, and the right to education.
Neither specifically mentions a right to reasonable expression of sexual orientation or of gender identity, and neither specifically lists sexuality or transgender as a status.
However, as stated by the Victorian Council for Civil Liberties, the most important thing is that there are moral and practical obligations inherent in particular international human rights law, and that in drafting the convention, the clause that relates to the prohibition of discrimination should be regarded as an all inclusive provision which would apply to discrimination on any grounds. This broad approach however has not gone unchallenged.
In Australia all treaties are entered into under the Executive Power of the Constitution (S61), and there is no requirement to either advise Parliament or to reveal the contents of treaties prior to entering into them.
Australia ratified the ICESCR in 1975 and it came into force for Australia in 1976. Australia ratified the ICCPR on 13 August, 1980 and in 1991 signed the first Optional Protocol to the ICCPR which allowed an individual to complain directly to the United Nations Human Rights Committee. It is open to any Australian citizen to make a complaint on the ground of human rights abuse, however please refer to the Commonwealth Legislation section below.
Commonwealth Legislation
Most Australian anti-discrimination legislation relating to human rights has been developed through use of the external affairs power. The situation arises not only because there is an absence of guarantees to equality in the Australian Constitution, but because the Constitution itself does not identify a large number of specific rights.
Consequently, in the development of human rights legislation the Commonwealth has been more influenced by external organisations than by any established Australian tradition of equality and equal access to law. International treaties are not held to have effect in domestic law until they are implemented by legislation, and therefore it is not possible to act as though legislation is in place merely because Australia has ratified a treaty.
The Human Rights and Equal Opportunity Commission Act 1986 established the Human Rights and Equal Opportunity Commission (HREOC) which has the responsibility of observing seven international instruments ratified by Australia, and the promotion of human rights of Indigenous Australians. HREOC administers:
The Racial Discrimination Act 1975
The Sex Discrimination Act 1984
The Disability Discrimination Act 1992, and
The Privacy Act 1988, which protects personal information collected by federal government departments or agencies, and ensures that tax file numbers are collected and used only for tax related or assistance agency purposes. It also provides privacy protection for consumer credit information, including the type of information that may be collected and the use and disclosure of this information. These areas have been of particular concern to the Gay, Lesbian, Bisexual, Transgender (GLBT) and Intersex communities.
If a problem arises from unlawful discrimination under any of these Acts, the Human Rights and Equal Opportunity Commission is the appropriate body with which to lodge a complaint. Any complaint must be lodged in writing within 12 months after the alleged act of discrimination took place.
The relevant Commissioner then inquires into the complaint, and attempts to settle the matter by conciliation, which involves bringing together people who are in dispute in order to reach a voluntary agreement which is satisfactory to all. The Commission forwards any unsuccessful conciliation matter to the Federal Attorney-General for further action.
Decisions of the Human Rights and Equal Opportunity Commission can be appealed against to the Federal Court of Australia.
In 1995, Senator Sid Spindler (Australian Democrats) introduced the "Sexuality and Gender Status Discrimination Bill 1995", also known as the "Spindler" Bill. The purpose of the Bill was to allow people who have been unfairly discriminated against on the basis of their sexuality or their transgender status, to achieve a level of justice.
The Bill will proscribe discrimination in the following areas: employment, superannuation, education, goods and services, accommodation, clubs and incorporated associations, sport, application of Commonwealth laws, and official documents. It also establishes offences for vilification on the grounds of sexuality and transgender status as well as providing for a Sexuality Discrimination Commissioner with the Federal Human Rights and Equal Opportunity Commission.
Clause 107 of the "Spindler" Bill preserves the right of same sex couples under any law of the Commonwealth, and along with Clause 4 makes it clear that the Bill will apply to the Commonwealth and its agencies.
Unfortunately, as this is a private member's Bill it is open to debate during "Question Time", and shortage of time has ensured that this Bill is currently stalled in the Senate.
Gay and lesbian personnel have legally served in the Australian Defence Forces since 1992, but unrecognised as such, have also served in every theatre of war including Word Wars I and II.
Defence personnel can nominate a same sex person as their next of kin for notification of casualty/death only. However, unlike the Australian Federal Police or the Department of Foreign Affairs and Trade, there are no entitlements such as those available to heterosexual couples, which include subsidised housing, travel to the family home, or separation allowance and superannuation.
There has been some effort, at least at the Command level, to bring the military into line with accepted best practice with regard to sexuality and gender identity issues. A new transgender personnel policy, Defence Instruction DI(G)16-16, was signed off by the Defence Secretary and Defence Force Chief in April, 2000. (This Instruction should also be read in conjunction with DI(G)36-2 which relates to deployment.)
As reported in The Australian (18/8/2000) and confirmed with the ADF Public Affairs Office in Canberra, the policy states "A person undergoing or contemplating gender reassignment cannot be considered suitable for service in the ADF because of the need for ongoing treatment and/or the presence of a psychiatric disorder." However, it also stated that anyone who has already had a successful reassignment is free to join the armed forces.
It was pointed out to the Media Liaison Officer when querying this policy, that the "psychiatric condition", was not "cured" but merely allayed by reassignment, and that anyone undergoing reassignment surgery was committed to taking hormones for life to avoid osteoporosis. Therefore the criteria given for excluding service before reassignment surgery also existed after it.
All efforts by the Media Liaison Officer to ascertain the source of medical opinion used in drafting this internal Defence Instruction were met with evasion and silence. It is to be hoped that the ADF Command in reviewing this instruction, will take note of the excellent treatment afforded their first transgender officer by the RAF in May, 2000.
Flt-Lt Caroline Paige (formerly known as Flt-Lt Eric Cookson), a highly experienced navigator, has successfully completed reassignment and is now awaiting her return to flying duties. The RAF not only showed their respect for Flt-Lt Paige as an individual by approving her reassignment, but also retained the expertise acquired by her over 20 years of loyal service.
State Legislation
Inherent in the Constitution are certain limits on Commonwealth constitutional power which derive from federalism. These limits prevent the Commonwealth from discriminating against a state (or the states generally) by imposing some special burden or impairing the continued existence of a state or its capacity to function.
The concept of "States rights" however, is not seen as an excuse for neglecting international obligations. State and Territory governments may also make human rights laws as a part of their power to legislate for peace, order and good government and State and Territory governments have implemented a wide range of human rights legislation.
South Australia was the first State to pass anti-discrimination legislation, with the Prohibition of Discrimination Act of 1966, which made race discrimination unlawful. South Australia was also the first to make sex discrimination unlawful, with the Sex Discrimination Act of 1975.
Equal opportunity or anti-discrimination legislation followed in the other states and territories, Victoria and New South Wales in 1977, Western Australia in 1984, the Australian Capital Territory and Queensland in 1991, the Northern Territory in 1992 and Tasmania in 1998.
All these laws deal with forms of discrimination that occur in the public areas of life. They are not laws which apply to people's private lives. Apart from the fact that all States and Territories acknowledge that same sex relationships are legal, there is little conformity across the nation, including the age of consent.
Many of the rights and freedoms that are considered an integral part of Australian society are not readily available to non-heterosexuals or to transgender and intersex people, and existing legislation is still not sufficiently specific to address many of the major problems experienced by these groups.
Depending on the State or Territory in which you live, you may be subject to discrimination in the following ways:
At work you may be denied promotion or suffer unfair dismissal, harassment, breaches of confidentiality, and refused overtime and higher duties.
Most Superannuation benefit schemes provide for benefits to a "spouse" in the event of death or disablement of the contributor. "Spouse" is generally interpreted as excluding same sex partners.
Same sex partners do not fall within the definition of "spouse" in most employee compensation schemes.
Same sex partners are currently excluded under workers' compensation and accident compensation laws, except in NSW. This may leave a surviving partner in severe financial straits.
Same sex partners receive no assistance to sort out their affairs when a relationship ends, whereas heterosexual de facto couples do receive assistance.
Same sex partners are often denied bereavement leave, carer's leave, compassionate leave and travel and transfer benefits because of the narrow interpretation of "family" and "spouse".
Same sex partners wanting to transfer property to joint ownership have to pay stamp duty. For heterosexual de facto couples the transfer is exempt from stamp duty.
Same sex partners are often refused hospital visitation rights, and are unable to get information about their partner's condition. Except in the ACT and NSW, when a person dies or is unable to make decisions due to illness, blood relatives may have a greater right to make vital decisions than the partner, who is excluded from participation and the right to give medical consent. In heterosexual de facto couples, the partner has a preference.
Gay men, lesbians, and bisexuals have been refused treatment because of their sexuality. Gay men and bisexuals particularly, experience discrimination because of their actual or perceived HIV/AIDS status.
Inheritance - there is automatic inheritance for a heterosexual de facto partner when a person dies without a will, whereas in the case of gay and lesbian couples, blood relatives usually have a stronger claim than the surviving partner.
Teachers and students have been victimised because of their sexual orientation.
Gay men, lesbians, and bisexuals have been denied access to housing by landlords and/or real estate agents on the basis of their sexual identity.
Discriminatory laws continue to apply in areas such as taxation, superannuation, social security, insurance, family law and intestacy and wills.
Bisexuals
It is as painful for a bisexual to "come out" as it is for gays and lesbians. Bisexuals who practice self-censorship to conceal their sexual preference are covered by heterosexual laws, but if detected, suffer the same discrimination as gays and lesbians.
Additionally, they are felt by many gays and lesbians to be heterosexual, and by heterosexuals to be gay or lesbian, and are therefore rendered "invisible" by both sides. Bisexuals however, do not consider that they belong to either group. They are poorly represented in State and Commonwealth legislation as a distinct group, but bisexual activity is legal in all states since both heterosexual and homosexual activity are legal.
Perhaps the most damning accusation made by both the gay/lesbian and heterosexual groups is that bisexuals are responsible for spreading HIV/AIDS between the gay and lesbian community and the mainstream heterosexual population, whereas unsafe sex practices spread sexually transmitted diseases, and bisexuals are no more or less responsible for this than any other group.
Transgenders suffer the same discrimination encountered by the above groups and worse. Transsexuals who announce that they are undertaking gender reassignment surgery lose their jobs in 95% of cases and according to the NSW Gender Centre, 60% remain underemployed or unemployed after transition. Since, in a democratic society all individuals are considered to be of value, and many transsexuals are highly skilled, this is a great loss to the emotional and intellectual life of the general community.
The suicide rate for transgenders is appalling, and they are significantly more disadvantaged than other groups in relation to assault and harassment in public places, with more explicit threats of violence and experience of assault than other men and women.
There are still some problems with police and other law enforcement agencies, but enlightened policies instituted in some states are working well.
There is a greater likelihood of transgenders experiencing discrimination or ill treatment in relation to the provision of goods and services than other groups, including rudeness and disrespect from a variety of service providers when failing to "pass" adequately as their chosen gender.
Transgenders also encounter difficulties with designations regarding sex on passports, educational qualifications, driver's licences and birth certificates etc. which are out of keeping with their gender role.
In Western Australia, the Gender Reassignment Bill which recently passed successfully through State Parliament allows for the official recognition of people's new genders after gender reassignment. Although transsexuals cannot change the original birth records, a Gender Reassignment Board will be created to issue a document recognising that a person has changed gender.
Victoria celebrated a benchmark win for Transgenders, when after 25 years of lobbying for change, the Equal Opportunity (Sexual Orientation and Gender Identity) Act 2000 was passed on Wednesday, 6 September, 2000. This comprehensive legislation makes it illegal to discriminate against "sexual orientation", a term which replaces the previous category of "lawful sexual activity".
It also adds "gender identity" to the list of attributes under which discrimination is prohibited. The legislation includes pre-operative and non-operative transsexuals (male to female, and female to male), cross-dressers, and many intersex people, but unfortunately not intergender people (those who have not decided on a particular gender).
Queensland is now the only State in Australia which does not provide any protection for transgender people. At a meeting with representatives of the community in October, 2000, the Attorney-General stated (after five years of submissions) that there were no plans to revise the Anti-Discrimination Act 1991 in Queensland, and that the Queensland Labor Government did not consider that the matter was urgent. Meanwhile the transgender suicide rate in Queensland continues to soar.Intersex people
The greatest problem that intersex people face is the insistence by society that babies should be one sex or the other. It has been common in the past to railroad parents into giving consent to surgery at birth to assign a sex to an intersex infant, when in fact few of the conditions existing at birth are life-threatening and do not require surgery at that time.
There is a growing objection to this practice of assigning sex without any input from the person upon whom surgery has been carried out, because many intersex people later feel themselves to be a gender other than that to which they were assigned.
Increasingly, intersex people have come to feel that their human rights have been violated, and are lobbying to put an end to this invidious practice.
The laws covering the GLBT and Intersex communities are complex, and it is emphasised that this booklet is a guide only, and no substitute for competent legal advice. The specialist organisations under National Contact and Referral Organisations at the end of this section are involved in lobbying for change and monitoring existing legislation. They are excellent initial contacts for up-to-date information and support, and are also able to refer inquirers to the appropriate organisation in their State and area.
AIS
Support Group (Australia) PO Box 1089, ALTONA MEADOWS, Vic, 3028.
(03) 9315 8809, aissg@iprimus.com.au, http://www.vicnet.net.au/~aissg.
(Peer information and support group for people with Androgen Insensitivity Syndrome and
related intersex conditions, and their families)
Australian
Bisexual Network, PO Box 490, LUTWYCHE, Qld, 4030. (07) 3857 2500 or Mobile 0416
068 532, ausbinet@rainbow.net.au, http://www.rainbow.net.au/~ausbinet.
(Information, support, lobbying and conferences, plus social events for bisexual people,
their partners, families and friends)
gala - gay
and lesbian alliance, (02) 9352 3888, memberservices@gala.net.au,
http://www.gala.net.au.
(Online information, support and socialisation for gays and lesbians)
Gay &
Lesbian Switchboard, Counselling lines (03) 9510 5488 (7pm-10pm daily and
2pm-10pm Wednesdays, 365 days a year), glswitch@vicnet.net.au,
http://www.vicnet.net.au/~glswitch
(Trained, volunteer, peer-group based counsellors, providing a free, confidential and
anonymous counselling, referral and information service)
GayLawNet,
1 Larnook Street, PRAHRAN, Vic, 3181, (03) 9510 5330, gaylawnet@gaylawnet.com, http://gaylawnet.com
(GayLawNet is dedicated to providing general information, news, and resources concerning
the law as it affects the GLBT community and the simplest access to a gay or lesbian (or
gay or lesbian-friendly) lawyer)
The Good
Tranny Guide, PO Box 1585, LANE COVE, NSW, 1595, suzyj@susyj.net,
http://host2.mbcomms.net.au/tg/gtg.
(Interactive, online information, support and socialisation for all transgenders,
particularly those with Gender Identity Disorder (formerly known as Gender Dysphoria)
PFLAG
Melbourne, PO Box 741, GLEN WAVERLEY, Vic, 3150, (03) 9511 4083 (Hrs
9.30am-9.30pm), p_flagvic@hotmail.com, http://www.gaynet.com.au/pflag
(Information and support for parents and friends of lesbians and gays. Socialisation for lesbians, gays and their
families and friends in a safe, supportive environment)
Seahorse
Club of Victoria Inc., PO Box 86, ST KILDA, Vic. 3182, (03) 9513 8222 or Mobile
0403 214 320, seahorsevic@mbox.com.au, http://www.vicnet.net.au/~seahorse
(Information, support and socialisation in a safe environment for all transgenders,
including cross-dressers)
TransGender
Victoria Inc., PO Box 762, SOUTH MELBOURNE, Vic. 3205,
(03) 9517 6613, tgvic@ivillage.com, http://www.vicnet.net.au/~victrans.
(Information, support and socialisation for transgenders, principally those with Gender
Identity Disorder (formerly known as Gender Dysphoria.
This group also undertakes education for the workplace and service providers)
(c) L.J.A. May, 2000
Permission is granted to John Bennett and the ACLU, to include this article in the publication "Your Rights 2001" and to reproduce it on the ACLU website.
This article may
be also reprinted for non-commercial purposes by any person or organisation without
obtaining further permission from the author.
Australian Civil Liberties Union