Chapter Two
THE RATIONALE FOR THIS INQUIRY
Introduction
2.1 Developing legislation to provide protection against discrimination
on the basis of sexual orientation and transgender status is an issue
which has caused considerable debate over an extended period of time.
The proposed legislation which is the subject of this inquiry and report
was introduced into the Senate in response to Australian discussion
of the need for some form of legislation to ensure that people were
not discriminated against on the basis of sexuality or gender status.
This movement was further influenced by the awareness of certain 'obligations'
under international law; numerous, often significant human rights developments
in other countries, particularly in Europe; and a measure of international
interest and 'concern' about the extent to which the rights of people
were limited because of their sexual orientation and gender identity.
[1]
2.2 The existence of State and Territory legislation in Australia,
[2] as well as numerous reports and comments,
indicated that the issue of discrimination against people on the basis
of sexuality had been considered important and as requiring specific
legislative measures. [3] Less consideration
had been given to issues affecting bisexual and transgender persons.
[4]
2.3 State and Territory anti-discrimination legislation was a response
to complaints, made over a long time period, of systemic [5]
and individual discrimination; these complaints had been made by people
who believed their sexual orientation or gender identity were a major
or sole reason for their being treated less favourably than other members
of the community.
2.4 Although some changes had occurred for the better as the result
of legislative change at State and Territory level, witnesses provided
a substantial amount of evidence on a wide range of issues they felt
demonstrated the need for uniform national legislation. Much of this
evidence indicated that 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 persons. Although there was also
extensive comment that extending anti-discrimination legislation would
create special rights, there was little evidence supporting this belief.
On balance, the Committee found that existing legislation was not sufficiently
specific to address many of the major problems experienced by non-heterosexuals
and transgender persons, and believes that anti-discrimination legislation
should be standardised throughout the nation.
Major areas of complaint
2.5 The main areas of complaint for both systemic and individual discrimination
were: employment; [6] the provision of goods
and services; [7] and harassment and violence.
Employment
2.6 Problems in this area included getting access to employment, and
being promoted or receiving other benefits such as training opportunities
and positive performance reports; [8] access
to 'standard' benefits such as various types of leave and allowances;
[9] being able to benefit from arrangements
available to others such as being able to take leave or to work at the
same time as a partner; treatment of superannuation benefits; [10]
and intimidation at work. [11]
2.7 A number of submissions offered evidence demonstrating limited
access to employment opportunities. [12]
These resulted from numerous factors, including interrupted education,
which could mean fewer opportunities later in life:
'Discrimination in schools and other educational institutions limits
educational opportunities for advancement. Where a teacher fails to
prevent targeting of homosexual students for harassment and bullying
by fellow students, tacit support is given for the conduct by the
authority figure. This can lead to students failing courses and in
some cases leaving the educational institution altogether.' [13]
2.8 Disrupted employment patterns affected employment experience and
records. [14] Of those who do complain, many
will only do so after they have left work, [15]
which reduces the possibility not only of conciliation but also of future
employment.
'...a formal complaint is lodged ... after the person has resigned,
and that is because the prospect of lodging a complaint on these issues
is so difficult that people would rather wait ... until they are actually
out of the workplace.' [16]
2.9 Other witnesses referred to various leave provisions being ignored
or relationships being excluded:
'...I am finding that both employers and unions, in reaching workplace
agreements, are ignoring the decisions.
[Queensland Association for Gay and Lesbian Rights] has been getting
quite a number of phone calls from people seeking advice about the
fact that we are making a workplace agreement and they have put in
family leave, but they have just put in mother, father and children
or they are avoiding the whole issue of that decision about household,
which is where same sex couples were recognised.' [17]
2.10 Concomitant problems included reduced income and the effects of
continued harassment and victimisation including lack of confidence
[18]:
'To allow any group to be impaired in participating fully in the
economic life of the community is to create a second class of citizen.
Where a person suffers economic discrimination they become more vulnerable
to other forms of discrimination and liable to become dependent on
government or charitable support. The members of this sub-class become
less able to protect themselves against further discriminations and
the ordinary vicissitudes of life.' [19]
2.11 Although little information was given on the limitation of employment
opportunities for transgender persons, [20]
some evidence was provided that they were more likely to be forced to
rely on prostitution [21] or some forms of
entertainment work [22] for a living. However,
other evidence suggested that transgender people included many with
high levels of education and experience [23]
and that involvement in prostitution or entertainment was minimal. [24]
Those who already had employment or qualifications and experience when
they became transgender might not be as disadvantaged as those who had
limited skills, although this was not invariably the case: [25]
'I worked for the one organisation for quite a number of years and
when I changed I still stayed with that organisation. Management were
very good, but I found that I was daily vilified particularly by a
lot of males. I was vilified by the minute for the first three months
particularly...' [26]
2.12 Employment problems for both transgender persons and non-heterosexual
persons occurred in both the private and public sector, in large and
small organisations:
'...when we conduct training in the area of dealing with workplace
harassment, the area that is perhaps of the most challenge and where
there is the highest level of discomfort amongst participants is in
the prospect of working with people who are of a different sexual
orientation from the majority of the people in the workplace. [27]
2.13 Educational bodies were adversely commented on by a number of
witnesses, [28] possibly because private
education (much of it provided by religious bodies) was exempted from
the discrimination provisions of State legislation. Employment in such
educational bodies appeared limited:
'...what often happens in these circumstances, too, is that it becomes
a prohibition on people to move into that area of employment altogether.
The problem with it is that it generates an expectation or a belief
within the community that homosexual people should not work in private
schools.' [29]
2.14 There seemed to be a belief in some sections of the community
that non-heterosexual persons were more likely to commit sexual acts
against students and would actively promote their sexual orientation.
[30] Witnesses also referred to teachers
being dismissed because they had been seen at a social event associated
with non-heterosexuals. [31]
2.15 Some educational authorities may also be influenced by the existing
social and religious structure which perceives the in loco parentis
authority to be within a heterosexual context. 'What we are interested
in is the fact that teachers are in loco parentis. Therefore, they need
to act in accordance with the parents' rights and requirements on this
matter': [32]
'The myth that offering legislative protection will pose a challenge
to a particular religious set of beliefs or practices is just that.
Religious schools have always employed and taught lesbian gay bisexual
and transgender people and will always do so, and in spite of this
religious beliefs are very evident and will continue to be.' [33]
2.16 Much of the evidence on State educational systems' employment
practices and student management suggested that there had been inadequate
attention paid by schools and educational authorities to the issues
of both systemic and individual discrimination and violence. Witnesses
suggested that a certain amount of violence and intimidation/harassment
was tolerated by teachers who therefore provided little guidance for
pupils and failed to support other staff or students who were the victims
of verbal or physical abuse. [34]
2.17 The Anti Discrimination Board of New South Wales stated that there
had been some changes in the NSW State education department since the
introduction of state anti-discrimination legislation, [35]
and this was supported by another witness. [36]
A need for educational services in schools appeared to be widespread:
'Several attempts have been made in Queensland to begin initiatives
to support gay and lesbian teachers and their gay and lesbian students
in secondary schools. Still only a skeleton of contacts exist for
teachers, with no services at all for students ... Teachers who find
that they must investigate and deal with issues of their own development
and social interaction in a legal situation that in many ways forbids
them to discuss it with their friends and co-workers will feel isolated
and unhappy. It is not stretching a point to state that many good
teachers are lost to the department this way.' [37]
Goods and services
2.18 Unequal access to goods and services was also a major concern,
particularly to medical, police and education services. The extent to
which Commonwealth powers extended to the provision of goods and services
and also of issues such as superannuation, was raised by the Commonwealth
Attorney General's department. The department believed that such matters
were not spelled out in the various international treaties or covenants
which were to be the basis of the legislation. [38]
Thus, even if one could accept both sexuality and transgender status
being included as a part of these 'obligations', it was another issue
altogether to fill in a very detailed coverage of issues. [39]
This argument, which is considered in more detail in Chapter Three,
was not accepted by other witnesses who believed that once an obligation
could be identified and agreed to as existing for Australia, the means
by which that obligation could be met were extensive. [40]
2.19 The main problems were identified as:
- the difficulty that some non-heterosexual persons had in identifying
as gay, lesbian or bisexual and in discussing specific health issues;
[41]
- some doctors not having adequate knowledge of the health services
required by homosexuals or bisexuals, and inadequate funding being
available for services; [42]
- some medical practitioners not wanting to accept homosexuals as
patients [43]. Witnesses believed they
were subjected to greater discrimination in medical services because
of assumed ill health or high risk behaviour: [44]
'Obviously equal treatment in a medical setting is imperative. In
practice the picture is much less attractive. Homophobia is as much
a problem among doctors and nursing staff as it is in the general
community. It is like putting your health in the hands of someone
who hates you.' [45]
- homosexuals and bisexuals believed there was a need for specialised
services because of because they experienced considerable stress.
[46] A similar issue was identified for
transgender people as well, especially resulting from problems in
getting employment. [47]
2.20 State government hospitals and community medical services can
be directly controlled under the provisions of State legislation, and
the employment provisions of the Sexuality Discrimination Bill 1995
apply to employment in the State public sector. Where specific problems
in service provision are identified these should be notified to the
relevant health authority.
2.21 Some additional problems in service provision were also identified
beyond hostility or lack of knowledge, although these included matters
that could come under the responsibility of the Commonwealth government,
such as limited access to re-assignment surgery for transgendered persons
[48] and some problem with access to required
drugs. [49] However, access to some drugs
was limited on the basis of a person's formal gender status, as opposed
to their preferred gender status. [50]
2.22 A number of community based services, such as refuges, other accommodation,
food and counselling services, may be run by organisations which limit
access for some groups [51] (contrary to
the spirit of the Commonwealth or State funding principles). Some of
these organisations or services were operated by religious bodies:
'One of the things that concerns us is the growing extent to which
the church and religious organisations are delivering services ...
Probably one of the most tangible examples would be the Salvation
Army, who do case management work for the Department of Employment
Education and Training. They would see themselves as falling within
this exemption [for religious bodies]. But they are actually performing
a task for the government and they are actually engaging in case management...
We would argue that the recommendation as it currently stands would
do nothing to prevent an organisation such as the Salvation Army from
actively discriminating against gay people in terms of the services
which they are publicly funded to perform on behalf of the Commonwealth.'
[52]
2.23 Religious bodies themselves expressed concern that their members
might have to separate their religion from their business and provide
community based services, including child care in accordance with the
proposed legislation. [53]
2.24 The issue of religious organisations possibly excluding people
from community based and government funded services, on the basis of
sexuality or gender status, is considered further below in Chapter 4.
[54]
2.25 The extent to which the quality of service provision to clients
might vary was not clarified. There was some suggestion that a service
might not be available at all, [55] and,
in some instances, physical or verbal violence could occur or inappropriate
services be provided:
'We are looking at people who are generally leaving a family environment
because of violence which is related to their sexuality preference.
They go to get some support and safety in mainstream services. What
they actually find is that they get further discrimination. This can
be as obvious as outright violence, and that would generally be in
the context of other young people within those services, or it can
be more subtle institutionalised violence where the service does not
have any policies specifically relating to young gays and lesbians...
Importantly, a lot of the homophobic murders have been perpetrated
by young people who were using support services in Sydney, such as
youth refuges. That is of significant importance when we are looking
at such limited services to young people who are in the [face] of
such extreme discrimination.' [56]
2.26 The issue of religious bodies obtaining an exemption for services
provided in and to the community under government programs is considered
further in Chapter 4. [57]
2.27 Although witnesses did not provide a great amount of direct detail
on their dissatisfaction with access to police services, it was stated
that discriminatory behaviour included:
- not taking non-heterosexual domestic disputes seriously; [58]
- not taking appropriate action in response to random violence by
heterosexuals against homosexuals; [59]
- seriously discriminatory language and behaviour from police. [60]
'While we like to think that both our police service and legal system
are unbiased, the fact is that people have such strongly held views
about gays and lesbians that that then impacts on the way we are treated.
It is to deal with that - to make sure that we get to courts, that
we get treated fairly by the police and that we get treated fairly
in the legal system - that we need this sort of legislation. ' [61]
2.28 It was stated by the Anti Discrimination Board of New South Wales
that there had been substantial and welcome changes in the NSW Police
Service since the introduction of the NSW legislation. These changes
included better training and education. [62]
This type of argument was supported by other witnesses who believed
that the NSW police were taking crime more seriously and were also beginning
to collect data on the rate of sexuality-motivated violence, and had
issued a report on assault against lesbians and gays. [63]Some
police forces in Australia also had gay and lesbian liaison officers
and staff [64] and education courses on homosexuality
had been developed. [65] There was also evidence
suggesting that good communication with police had helped develop a
working relationship in which all parties were able to work together:
'The Tasmanian police are perhaps the best government department
in Tasmania on gay and lesbian issues....They have some very good
policies in terms of our community and they are not going to victimise
us...' [66]
2.29 Other witnesses pointed out that violence against homosexuals
was still supported by the police or legal system especially in cases
when arguments justifying excessive force or violence were seen as acceptable.
In particular, the 'homosexual panic defence' or 'homosexual advance
defence' was raised as an issue of some concern since it could be used
to demonstrate provocation in order to justify killing or extremely
brutal violence. [67]
2.30 From the evidence provided it appeared that there was still substantial
prejudice within various police forces against non-heterosexual persons,
including fellow police:
'...gay and lesbian members are still subjected to "witch hunts"
in the Victoria Police usually under the guise of either administrative
reviews or by the selective application of the discipline system.
Being a paramilitary organisation and one operating in a highly dynamic
and often quickly changing circumstances, work practices frequently
differ from the procedures set down.' [68]
2.31 Access to education is essential for employment opportunities
and socialisation. However, just as people perceived themselves to be
discriminated against in access to employment within education services,
so also did others state that people seeking education would find themselves
disadvantaged in access because of violence, harassment and lack of
support. A witness for GLAD referred to the reaction especially in schools
to discussion of homosexuality:
'I would like to bring to the committee's attention the extreme level
of fear, anger, absolute hatred and despising which comes forth from
students regarding the topic. This was my experience even this very
morning when I was at a state high school. For 90 minutes there was
a total barrage of feelings of resentment coming from the students
as to the continued existence of lesbians and gay men in this state.'
[69]
2.32 Evidence provided to the committee about the extent of violence
and harassment in NSW schools also suggested that the safety of staff
and students was at risk and their capacity to benefit from the school
environment was undermined. [70] This discrimination
was experienced in both the public and the religious school system,
and it was thought that the discrimination already well established
was being encouraged by the existence of weak legislation. [71]
Other witnesses referred to discrimination in tertiary education services
both from students and from staff, including discrimination against
people on the basis of presumed sexuality:
'In some cases the harassment has been such that the individual has
withdrawn from the subject. This is often a problem for people who
are heterosexual. In particular, women pursuing study in traditionally
male areas can be accused of being lesbian or generally have their
sexuality questioned.' [72]
2.33 One witness also suggested that it was not enough to prohibit
discrimination. It was also necessary to make education relevant:
'Provisions regarding education in the Bill refer only to discrimination
against students or those applying to be students ... We support the
extension of this provision to cover the range of subjects and services
provided by the educational institution.
For example, should there be significant demand for a particular
subject to be taught (perhaps on AIDS law) then the institution shall
not refuse to provide the subject or withdraw the subject from its
syllabus only on the ground that it wishes to discriminate against
students of particular sexualities.' [73]
2.34 This may be seen as a measure to remedy any practices such as
the provision of anti gay and lesbian material [74]
as well as extension of educational options.
2.35 Witnesses referred to a number of areas in which they either could
not obtain access or received less favourable treatment. These are considered
in further detail below. [75]
Harassment , violence, and vilification
2.36 Many witnesses gave evidence of verbal and physical harassment
and intimidation, and believed that legislation was required to address
this issue. [76]
2.37Discrimination not only excludes people from access to, or advancement
in, education and employment and a range of rights available to others
but also causes them emotional and psychological damage and physical
harm, [77] and increases their isolation.
[78] The risk may be even higher for young
people and those living in rural communities [79]
if there are fewer options for assistance and support:
'From my work at the coal face, suicide, mental illness, homelessness
and physical and sexual abuse are common problems that many young
people in particular face, but many gay and lesbian people experience
them due to their sexuality and because of a lack of social and legislative
protection.' [80]
2.38 A number of witnesses stated that harassment was a common factor
in the lives of non-heterosexual people. [81]
Harassment and intimidation was often expressed at work, where it has
the capacity to make a person feel even more excluded from the mainstream:
'Our client worked in the administration section of a defence force
institution in NSW. He was subjected to repeated name calling and
graffiti was written in the office restroom about him. The name calling
and graffiti made derogatory reference to him in terms of his sexuality.
At one stage a supervisor threatened him with physical violence and
made reference to his sexuality. Our client took stress leave as a
result of the harassment and was placed under the care of a psychologist.
Our client has remained out of employment for a number of years as
a result of the discriminatory conduct and has been diagnosed as clinically
depressed as a direct result of the discrimination.' [82]
2.39 Other evidence emphasised that verbal assault and intimidation
was disturbing, and that legislation had to deal with this effectively
as well as with more obvious violence: 'When we are talking about discrimination,
we are not necessarily talking about matters which are as physical as
that...discrimination is often much more subtle.' [83]
Although much of the evidence given referred only to harassment of homosexual
people, transgender people also indicated that such treatment was quite
common for them as well. [84] It is also
possible for harassment of transgender persons to include a refusal
to treat them as a member of the sex or gender with which they identify,
a concern which was often expressed in evidence to the Committee. [85]
2.40 The Sexuality Discrimination Bill 1995 does not contain
any specific provision regarding intimidation and harassment. A number
of witnesses suggested that it should do so, [86]
and this move was supported by former Senator Spindler, author of the
bill. [87] Those supporting this addition
advised that the provisions in the Sex Discrimination Act 1984 relating
to harassment would be a useful model. In general terms this may be
so although the specific provisions of the harassment clauses in the
Sex Discrimination Act include reference to 'unwelcome sexual advances'
and an 'unwelcome request for sexual favours' and 'other unwelcome conduct
of a sexual nature'. [88] Harassment based
on sexuality is unlikely to include such advances or requests for sexual
favours, and is more likely to consist of abuse and intimidation of
the person because of their sexuality or gender status. The more appropriate
section of the Sex Discrimination Act is 28A(1)(b) which refers to 'conduct
of a sexual nature' which includes 'making a statement of a sexual nature
to a person, or in the presence of a person, whether the statement is
made orally or in writing.' [89]
2.41 A more appropriate model may also be the provisions of the Racial
Discrimination Act 1975 which refer to offensive behaviour [90]a
term which can cover harassment as well as vilification. Section 18C(1)
of the Racial Discrimination Act refers to an act 'which is reasonably
likely, in all the circumstances, to offend, insult, humiliate or intimidate
another person or a group of people', the act being done because of
the race or ethnic characteristics of an individual or some or all of
the members of a group. Such action is unlawful, although unlawful acts
are not necessarily criminal.
Recommendation 1.
That harassment of people on the grounds of
their sexuality or their transgender status (or perceived sexuality
or gender status) be proscribed.
Add to Clause 6 of the Sexuality Discrimination
Bill 1995:
Clause 6
(5)(a) discrimination includes harassment,
which is an act reasonably likely, in all the circumstances, to offend,
insult, humiliate or intimidate a person or an associate or relative
of the person;
(5)(b) harassment of a person on the ground
of transgender status includes harassment of a person by refusing
to acknowledge that he or she wishes to be known as a member of a
specific gender and has made this preference clear.
Violence, Incitement to Hatred and Vilification
2.43 More obvious violence, including quite severe
physical violence, was more likely to be expressed in public and by
strangers. [91] Some groups in the community
have advised that the extent of intimidation can be quite dangerous,
and that people are exposed to levels of violence and harassment that
would not normally be tolerated: [92]
'... it is hard if you are not gay or lesbian
to understand how ingrained the hatred can be in society. We are talking
about a belief by many people that, if people are homosexual, those
rights that are there under common law do not exist for them because
they are not seen to be equal - they are not seen to have rights.'
[93]
2.44 In some instances, this violence and intimidation
appears supported by religious bodies, and by society in general. [94]
The 'moral rightness' of violent attacks was referred to by witnesses:
'If you actually think of it from the perspective
of a perpetrator of this violence, [it] seems logical. The laws have
said that homosexuals are illegal and they are perverted. They are
not provided the same treatment before the courts. Many young people
involved in this violence see themselves as being moral ambassadors.
They see that they are doing something right. They are doing something
socially sanctioned.' [95]
2.45 One witness suggested that some data relating
to sexuality-based violence was misleading insofar as it suggested disproportionate
violence being experienced by homosexuals relative to their percentage
in the population. [96] It was also suggested
that the murder rate of homosexual men was closely linked to the predominance
of key factors at key times; [97] this correlation
indicated that lifestyle helped contribute to the murder rate although
the violence expressed by the non-gay community itself was not dismissed.However,
developing legislation specifically to deal with sexuality or gender
based harassment, intimidation and violence was seen as inappropriate
by some witnesses. They believed that such a request was an instance
of homosexuals seeking special rights and stated that there was already
adequate legislation in place to cope with violence and assault, and
that people should use this: 'Existing laws protect all citizens in
cases of assault and libel.' [98]
2.46 This point was also made by a strong supporter
of the bill. The Victorian Council for Civil Liberties noted that although
there is a provision in the Sexuality Discrimination Bill 1995 regarding
incitement to violence, this was already covered by both state and federal
legislation. [99]
2.47 However, some believed that specific legislative
prohibition of sexuality based violence was necessary to help reduce
the ingrained beliefs that some forms of violence were acceptable and
were in fact not 'real' violence:
'Whilst I would encourage people to use existing
criminal provisions when we are talking about actual acts of violence,
it depends on the individual police officer in many instances as to
whether you are going to be treated fairly and whether the matter
is going to be treated seriously once it is discovered that you are
gay or lesbian. Once you end up in court, again it depends on the
individual magistrate or judge whether you are going to be treated
fairly ... It is to deal with that ... that we need this sort of legislation.
It is not to stop people being charged with criminal offences.' [100]
2.48 Some witnesses believed that anti-vilification
provisions were seen as interfering with free speech. [101]
This approach also appeared supported by the belief that non-heterosexual
behaviour was inherently wrong:
'Australians must guard the right of free speech
on all issues. Vilification legislation is mind control. This is borne
out by experiments to 'de homophobe' students in New South Wales schools.
After initial lessons, it was found that they soon reverted to their
so-called 'homophobic' attitudes after about six months and needed
further programming. The training failed because the majority of the
community, including our children, know that the homosexual lifestyle
is not a natural one.' [102]
2.49 In contrast, a member of another religious
organisation stated that the organisation was opposed to arguments of
free speech and religious belief being used to obscure violence and
discrimination:
'...freedom of religious expression ... is
one of the great aspects of our country. However, when that freedom
of religious expression crosses over and starts to be an expression
of hatred and actually condones violence or stands in the way of people
receiving welfare services or other services to which they are entitled,
then I have to speak out very loudly against any exemption that would
allow that to happen.' [103]
2.51 Even though there is a specific rejection
of physical violence by most churches, [104]
the language of rejection can seem violent: [105]
'...for other Australians, including our members,
homosexual behaviour and homosexual relationships are viewed as inherently
disordered and of no positive social value ... anti-discrimination
legislation which makes sexuality a ground for claims, unjustly imposes
a positive, or at best, a neutral view of homosexual behaviour and
relationships on those Australians who, for whatever reason, have
a negative view of such behaviour and relationships.' [106]
2.52 Although gay, lesbian, bisexual [107]
and transgender people all referred to violence and harassment, the
Anti Discrimination Board of New South Wales considered that transgender
people might be particularly vulnerable to public violence. This in
part related to the belief that many transgender people obtained employment
in the sex industry and also had problems with drug abuse: 'this has
led to them having a particular status as targets of violence and harassment.'
[108] However, linking transgender people
to prostitution and to various forms of entertainment appears to be
discriminatory. Much of the evidence provided to the Committee indicated
that many transgender people had worked in 'ordinary' jobs, including
the professions, and wished to remain in such employment. The difficulty
in maintaining previous employment could be related to social pressures
rather than any inherent 'transgender' characteristics: [109]
'...part of what this bill will do for the
transgendered is that it will get people out of welfare. It just happens
so many times, time and time again. People get a job, they have found
out that they are transgendered and then they are asked to leave or
they are forced to leave because of the vilification or discrimination.'
[110]
2.53 Those transgender people who do earn a living
in the prostitution and entertainment areas may be as likely to be violently
attacked as some homosexuals whose lifestyle factors may increase the
likelihood of violent attack. [111] However,
the main reason for other transgender people being attacked may simply
be the fact that such violence is not discouraged by law. As is the
case with violence directed towards many homosexuals, people may perceive
there is cultural support of such actions, and education services as
well as clear legal prohibition may need to be specifically directed
towards resolution of this situation. [112]
2.54 Anti-vilification legislation is relatively
rare in Australia. The Commonwealth Racial Discrimination Act 1975 prohibits
vilification on the grounds of race, colour, national or ethnic origin.
The New South Wales Anti Discrimination Act 1977 prohibits vilification
on the grounds of race (including serious racial vilification') [113]
and also on the grounds of transgender status, homosexuality and HIV/AIDS
status [114]including 'serious' vilification
in all three areas. Serious vilification charges proceed only when the
State Attorney General agrees, such acts being deemed to be criminal.
2.55 The Commonwealth Attorney General's department
expressed some concern at the provision in the Sexuality Discrimination
Bill 1995 of a section proscribing vilification on the basis of sexuality
and transgender status. [115] The basis
of this concern was the absence of any specific international statement
on vilification unlike the situation with racial vilification which
was supported by the existence of the Convention on the Elimination
of all Forms of Racial Discrimination:
'We doubt that [clause 26] could be regarded
as a measure adapted to giving effect to any international obligation
that Australia might have ... The racial vilification legislation
... relied on a specific provision ... In the area of sexual preference
and transgender identity there is no equivalent international obligation.'
[116]
2.56 A similar point of view was expressed by
the Victorian Council for Civil Liberties, although the Council believed
an argument could be mounted that 'vilification measures were in fact
another form of protection against discrimination. That would ultimately
be up to the High Court to decide the validity of those, but it certainly
is less clear.' [117]
2.57 These positions, especially that of the
Attorney General's department, were challenged by a number of witnesses
who felt that the Commonwealth external affairs power would enable the
development of anti-vilification legislation in the area of sexuality
and transgender status, linked to a more clearly defined and established
international interest and concern on sexuality and transgender issues
generally:
'The issue of whether we have an international
obligation then leads on to the question of whether it activates the
external affairs power. I am saying that our international obligation
under article 26 of the international covenant [ICCPR] would support
legislation dealing with goods and services and legislation dealing
with vilification.' [118]
2.58 The Committee notes that there are defences
to the charge of vilification ('safe harbour' provisions) [119]
in the bill. These allow a range of actions to be exempt on the grounds
of being public acts done 'reasonably and in good faith'. [120]
As was the case with other exemptions, however, there was some concern
expressed that these exemptions would be abused by certain groups purporting
to be acting in good faith:
'The criteria for safe harbour provisions ...
would require a judge to give content to all or many of these expressions.
It is our view that the uncertainty inherent in that exercise is inimical
to the law. The provision is so widely cast that it would simply encourage
the expression of hatred on sexuality or transgender identity. It
is, in our view, a positive inducement to homophobes ... to dress
up their views as pseudo science to being them within the safe harbour
provisions.' [121]
2.59 The Committee believes it is important to
retain these exemptions in respect of the vilification provisions of
the bill. It acknowledges that the public expression of dislike and
hatred can provoke further verbal and physical abuse. It would expect
that education and information services during the first two years of
operation of the legislation would help in making all members of the
community aware of the need to respect the right to free speech and
the importance of responsible use of free speech. It believes that the
issues raised by all parties about the importance of freedom of speech
and about the need for responsible exercise of this freedom dictate
an addition to the current provisions regarding vilification. [122]
Recommendation 2
That the current provisions in the Sexuality
Discrimination Bill regarding vilification be retained. However, the
Committee believes it is appropriate that there be a review of the
operation of the vilification provisions, to be completed no later
than two years from the commencement of the Act, with a view to determining
if the provisions should be retained, modified or repealed.
Clause 26
Add
(4) A review of this section is to be completed
by the Human Rights and Equal Opportunity Commission or by an appropriately
qualified organisation or review panel, within two years from the
commencement of the Act, with a view to determining if the provisions
regarding vilification/incitement to hatred should be retained, modified
or repealed.
Possible causes of discrimination
Social constructs - the family
2.60 Much of the discrimination and indeed violence
directed towards non-heterosexual people was believed to be based on
the existence of a social and religious norm of heterosexuality and
heterosexual partnerships. [123]
'...it seems to me that we need to understand
that lesbians, gay people, people with different sexualities, have
been placed in the position of being seen in a negative role by history,
and I think it is very important that we understand that it was only
the early moral or religious code which said that all sexual behaviour
that was not for procreation was to be seen as a sin. It was that
code that then got encoded into the legal code that was developed
and that in turn became stated as the medical code.' [124]
2.61 Benefits have been developed by government
and by other institutions which direct preferential treatment to couples
rather than single people, [125] and also
to people with children or 'families', an arrangement that was seen
by some as a reward for the hard work involved in marriage:
'...marriage brings with it a lot of responsibility
and a lot of commitment. For that some rewards are given, such as
superannuation is given tax free.' [126]
2.62 For some organisations, even a willingness
to accept the confines of marriage-like relationships and family responsibilities
would not justify granting such benefits - thus, the objection appeared
to be based either on sexuality or lack of formal marriage rather than
a lack of 'commitment'. [127] One submission,
however, stated 'Religious activities should have no bearing on the
legal right of any two adults, of whichever sex, to enter into a legal
contract that formalises their social commitment', [128]
a view also supported by the Religious Society of Friends. [129]
2.63 In some cases, organisations appear to believe
that as marriage really only exists for creating an environment for
the raising of children- 'in our view society has an interest in preserving
the goods of marriage-stability and exclusivity directed to the bearing
and nurture of children' [130] - then the
financial benefits directed to this relationship (regardless of the
presence of children) should not be available to any other relationship.
[131] '[the proposals] are not supportive
of the family unit as the basis for society [and] if enacted would weaken
the role of the family .' [132]
2.64 Some witnesses indicated they had no interest
in changing the place of the family in society, [133]
but only in extending the definition of family to embrace a wider range
of arrangements:
'...the relationship recognition in this bill
would not recognise a lesbian mother, who has an adopted child, in
a non-sexual relationship with another woman - whose child recognises
the other woman as the partner and another mother - as a family, but
they see themselves as a family.' [134]
2.65 Even in instances where more flexible family
or partnership arrangements were at least acknowledged, there appeared
to be a reluctance to extend financial benefits, if only on grounds
of cost. [135] Such costs are particularly
obvious in terms of insurance and superannuation payments, family benefits
in housing and allowances and in matters such as health insurance where
the definition of a family may currently oblige some 'families' to pay
higher rates than others. [136]
2.66 Benefits are available to heterosexual married
and de facto couples in a number of areas, at State and Commonwealth
level, and from the private sector, including:
- taxation, including availability of rebates
for dependant spouses and for carers, and a range of other concessions
relating to marital status; [137]
- health insurance rates; [138]
- life insurance rates and payments; [139]
and
- arrangements for payment of superannuation
benefits, including pensions. [140]
2.67 The heterosexual model of family has also
helped to shape other legislation and arrangements regarding marital
and next of kin status, both of which are generally denied to same sex
couples or couples with other than heterosexual relationships. [141]
'As it stands the Superannuation Act gives
definitions of relationships which are heterosexist in their intent.
So, when it talks about next of kin, it specifically nominates opposite-sex
partner or a blood line which runs through your immediate family.'
[142]
2.68 This could mean that non-traditional partners:
- could not automatically inherit property on
the death of the other partner; [143]
- might have to pay higher land transfer payments
on the termination of a relationship (stamp duty); [144]
- might be excluded from loan arrangements available
to others;
- would not be seen as 'next of kin' for purposes
of health care decisions, transplant or donation decisions, funeral
arrangements; [145]
- depending on institutions, might not be seen
as the automatic beneficiary of superannuation; [146]
- might be denied access to, or custody of children;
[147]
- could be in a tenuous position regarding the
support of children; [148]
- be excluded from provisions of the Family
Law Act. [149]
- could be excluded from IVF programs, [150]
although this may be on grounds of being fertile, or on the basis
of parental or couple status rather than explicitly because of sexual
orientation. [151]
2.69 For transgender people in particular, especially
those who did not undertake formal re-assignment, there was limited
access to recognition of themselves as individuals as well as members
of a relationship. [152] A number of witnesses
referred to being treated unfavourably by Commonwealth departments particularly
the Department of Social Security, not so much with respect to eligibility
for benefits - although this has been an issue - but in terms of not
being treated in the correct or chosen sexual identity. [153]Evidence
was also given that the Austudy rules on homelessness had particularly
disadvantaged gay and lesbian young people. [154]
2.70 The changes that have occurred in terms
of legislation appear to benefit those transgender people who are able
to establish a new identity. Those who cannot afford surgery [155]
or who choose not to undergo it are excluded from the very services
they may require the most - formal recognition of themselves as an individual;
formal recognition of a relationship; and appropriate identification
documentation. [156] For those who are unsure
about their identification, this may be a particular problem, [157]
although the question of documentation and appropriate status was important
for all transgender persons. Other areas of discrimination or exclusion
for transgendered persons were similar to those for other non-heterosexual
people - accommodation/housing; [158] employment;
[159] benefits and pensions, and concessional
arrangements for partners. [160]
2.71 The idea of the (heterosexual) family
or couple is important in shaping social institutions - for example,
single people are also discriminated against in most superannuation
payment arrangements [161] and various insurance
schemes have only recently begun to recognise the different natures
of 'families'. Nonetheless, it is not clear that social inequities can
necessarily be overcome by having a broader understanding of the concept
of couple or family, since this might continue discrimination against
those who were single or did not choose to identify as a member of a
family. [162]
2.72 While for some witnesses, the formal recognition
and the resulting benefits were seen as important, [163]
other witnesses were also aware that the concept of 'couples' might
also be discriminatory: [164]
'One of the problems with lesbians and gay
people participating in an institution like the family, as we now
know it, is that it tends to prop up the type of institutions which
have, in fact, been responsible for our own historical and present
oppression'. [165]
2.73 Other witnesses, while interested in more
formal recognition of non-heterosexual relationships and the benefits
of such recognition, were reluctant to make this mandatory. [166]
This reluctance was based on factors which should be emphasised since
they help to break down one of the stereotypes about non-heterosexuals,
that of homosexuals and bisexuals all being middle-class and financially
well-off. In contrast to this stereotype, it was argued that non-heterosexuals
are a cross-section of society, socially and economically; and that
homosexual women may be more financially disadvantaged than homosexual
men. Any compulsory notification of relationships could benefit some
(especially with respect to superannuation) but greatly disadvantage
others, especially women who might be dependent on social security benefits:
[167]
'...we are aware that this is a controversial
issue and that there are many different points of view ... Our opposition
is based on the simple fact that the de facto recognition only provides
limited protection to gay and lesbian couples, whilst placing some
couples in a worse position ... The de facto recognition will only
assist those who are already well off ... and could be to the detriment
of many of those who are on social security benefits. Like most women,
most lesbians are poorer than most men (including gay men). Lesbians
are much more likely to have children than gay men and hence to be
receiving benefits ... which would be affected by the de facto regime.'
[168]
2.74 The obligatory nature of any couples arrangement
was also rejected, [169] as was the reluctance
to have past injustices in a sense swept away without any formal recognition
of the financial and other problems that had shaped people's lives.
[170]
2.75A similar attitude was expressed with regard
to excluding the term 'heterosexuality' in the definition of 'sexuality',
since this suggested that all people were equally discriminated against
on the basis of sexuality: [171]
'...it lies about the experience of discrimination
... if you have formal equality when you begin with substantive vast
inequality, it does not even things up. It tells a lie about where
everyone is actually positioned in relation to each other.' [172]
2.76 In some respects, non heterosexual people
were requesting exclusion or exemption arrangements, or positive discrimination,
in order to overcome some elements of past discrimination. [173]
However, a number of witnesses did not believe that homosexuals and
transgender people experienced any more discrimination than other groups
in the community, and that specific legislation and related provisions
would be a mistake:
'Homosexuals are by no means the only people,
class or group subjected to peer rejection for their sexual ideology
... We recognise that there are indeed significant social problems
in the area of sexuality with conflicting culture and conflicting
moral values as a consequence of the diversity of human experience.
However, we believe that legislating to give an advantage to homosexual
culture and homosexual values by outlawing criticism of that lifestyle
is unjust.' [174]
Social constructs - stereotypes
2.77 Another major possible reason for discrimination
is the difficulty which society has in seeing non-heterosexual people
as individuals. This is manifested in two main ways, the continuation
of certain negative images [175] and the
emphasis on non-heterosexual people being defined purely by their sexual
orientation and assumed activity, and not by any other quality or feature.
2.78 If the heterosexual family, responsible
and committed, caring for the young in a moral environment, is seen
as the norm, others deviating from this are generally presented as individual
people without commitment or responsibility, obsessed with sex, indiscriminate
in appetite and particularly attracted to the young [176]
whom they seek to seduce and then convert:
'I think the paranoia and fear which revolves
around this question is really important to study. It is based on
essentially two fundamental myths. The first is that homosexuality
can be taught. There is this extraordinarily irrational fear in the
community that we must prevent homosexual teachers from existing and
from teaching ... because their very presence in the classroom may
influence a child to become homosexual...
I think also that there is the fear that by
educating people about homosexuality you can in some way encourage
them or teach them to be homosexual. That is patent nonsense as well.'
[177]
2.79 Many witnesses referred to self indulgence,
obvious flaunting of sexuality, [178] and
numerous sexual partners and relationships [179]
as characteristics of homosexual persons. [180]
There is a perception of wealth, of all non-heterosexuals being affluent
and occupying white-collar jobs, [181] and
of being city dwellers. But, one witness noted, there were many disadvantaged
people who were lesbians and gays:
'What concerns me most is that those people
who are not educated and not secure financially and who do not have
the assertiveness are the people who really suffer discrimination
... It does seem to me that these are the kinds of people that need
the backing of government: the people who are vulnerable, the people
who are perhaps emotionally or financially weaker than others.' [182]
2.80 Any emphasis on wealth and power and influence
[183] contributes to general alienation,
and the emphasis on non-heterosexuals being predominantly resident in
cities may increase the sense of isolation of those who do reside in
regional and rural areas: [184]
'The issues that are commonly faced by those
people are intense isolation, lack of accurate information and support,
and lack of appropriate and sensitive health care services. People
face discrimination at school, in the workplace and in the community.
They are often victims of violence. They are often at greater risk
of drug and alcohol abuse and mental illness. Young people, in particular,
are at greater risk of homelessness and suicide. Isolation is a key
factor for this group of people. It maintains the oppressive conditions
they experience and is one of the most significant factors in poor
health care.' [185]
2.81 Because of this supposed indulgence and
lack of self control, non-heterosexuals are deemed too dangerous to
be employed in child care or in education services. [186]
It is thought they will have no interest in actually caring for or teaching
a child, but will instead make their sexuality known, advocate that
others share it, [187] and educate the impressionable
away from their natural sexual preference of heterosexuality:
'These amendments [to the Western Australian
Decriminalisation of Sodomy Act 1989] are repugnant because
they perpetuate the myth and the insidious mythology that homosexuality
is something that can be promoted and encouraged and is something
that can be taught, neither of which is true.' [188]
2.82 They will presumably also indulge in some
forms of sexual activity in the workplace given their supposed predilection
for paedophilia: [189]
'The anti-vilification measures are also an
appropriate response to the particular forms prejudice against lesbians
and gay men taken in our community (very often a generalised negative
stereotyping of lesbians and gay men as perverted or paedophiles;
often sexual preference is included in the same category as incest,
sexual assault or bestiality, where effective consent is non-existent
or unobtainable.' [190]
2.83 Stereotyping, as noted above, tends to consider
non-heterosexuals in terms of a part of their life, assuming that the
whole of their life is directed to one activity: 'your sexual orientation
is not relevant to a person who is operating a coal loader in a coal
mine, or to a person who is designing buildings or whatever. The issue,
in fact, is the capacity to do the job.' [191]
2.84 For this reason, although some witnesses
were not opposed to the term, others were opposed to legislation which
included 'lawful sexual activity' as an attribute: [192]
'The Queensland and Victorian provisions referring
to 'lawful sexual activity' have been rightly criticised by gay, lesbian
and transgender organisations for their lack of clarity. This term
defines people by what they do and not who they are, in terms of sexual
acts rather than identity.' [193]
2.85 Defining some people according to their
sexual orientation (although heterosexuals do not define themselves
in such ways) strengthens the perception that sexuality is the entity
of a non-heterosexual person. This makes it easier to ignore the education,
experience and other attributes of people and to exclude them from certain
areas of employment or occupation, thereby reinforcing the belief that
they must be excluded because all they will do is prey on others: [194]
'...most importantly, there is some concern
about whether it would prevent discrimination on a daily basis.
...for example, ... there was a recent case
in Queensland where two men holding hands in public were not afforded
protection under the current Queensland act because their behaviour
did not relate to lawful sexual activity. A similar example might
be, say, two people trying to book a motel room together. Does that
relate to their sexual activity and, if they were discriminated against
on that basis, then would they be covered?' [195]
2.86 Transgender people are presented through
other stereotypes such as choosing to move between genders as the opportunity
to benefit arises. This perception, which was expressed by a number
of witnesses, was identified as being quite misleading. It reflected
especially a lack of awareness of the processes involved in identifying
as transgender and then as choosing to live as a transgender person
(or as a man or woman): [196]
'We have regarded the question of transgender
commitment on the part of an individual to be something in which a
person in fact makes a commitment to live as and to seek to be identified
as a member of a sex which is not the sex that they were biologically
born with or which they biologically are. It is not a matter of the
immediate fashion of the day. It is not the business of deciding that
you want to assume the status of a woman one day and a man another
day. It is where an individual person seeks to live as, identifies
as and indeed seeks to be recognised in the community as a person
of the other sex.' [197]
2.87 Transgender witnesses, whether transsexual
or otherwise stated that as individuals they had long been aware of
being a different gender psychologically. [198]
They strongly opposed the idea that people moved between genders on
a regular basis, especially for financial gain. [199]The
confusion between transvestites, drag queens and transgendered persons
[200] and the fact that some people may
experience uncertainty as to gender identity [201]
may contribute to the belief that gender identity is transient, and
that there is an element of choice:
'Could I emphasise that being trangendered
is not a matter of choice. In our clinic all of us have a strong feeling
that this is probably a genetic abnormality ... people seem to be
more or less born with the need to be transgendered. It is not something
that people can choose -'I think I will be a man today' or 'I think
I will be a woman tomorrow' - that sort of thing. It is not an issue
in which one can say, 'I can do this or I can't do that.' The urge
to change one's gender has to be extremely strong, otherwise no-one
would do it.' [202]
2.88 Stereotypes are also used to argue that
there is an element of choice [203] in non-heterosexual
sexual orientation, but do not consider the issue of choice to be relevant
with respect to heterosexuality In some submissions, the concept of
choice was linked to that of lifestyle, with an equation being drawn
between being homosexual and choosing to be a promiscuous heterosexual.
[204] Others made a distinction between
being homosexual and choosing to engage in a homosexual lifestyle. The
meaning of 'lifestyle' varied from having a sex life to having a promiscuous
sex life. [205]
2.89 So long as the idea of choice remains part
of the stereotype, [206] the idea of choosing
to be irresponsible, anti-family, non-committed and so on becomes something
in the control of the individual. It is not something that society has
helped to establish and that society can also help deconstruct: [207]
'...the law says to the population of Australia
that we are less than everyone else; that we do not have long-term
relationships; that those relationships, should they exist - and most
people do not believe they do - are not supported by the state.' [208]
2.90 Where the individual or group is seen as
diverging from the mainstream, there is pressure for that individual
or group to return, to be integrated, through the exercise of their
will. There is less discussion of the mainstream examining its own rationale
and allowing flexibility and diversity, although there have been some
noticeable changes in the attitude of influential bodies such as churches.
Support of Stereotypes and Discrimination
2.91 The effect of these stereotypes is apparent
in the areas of education, training, employment and employment opportunities,
and general health and well being; and, less obviously, they will also
affect the extent to which non-heterosexuals are perceived as people
entitled to the rights enjoyed by others, such as freedom from random
attack and systemic discrimination on the basis of sexuality or gender
status. [209]
2.92 Aside from State and Territory legislation,
[210] there has been limited response to
these identified problems. A number of organisations have expressed
a belief that there is little reason for specific legislation in respect
of sexuality or gender identity. [211] While
generally acknowledging that violence and certain other forms of discrimination
should not be exercised against people because of their sexuality or
gender identity [212] ('most churches today
do not uphold to the killing of homosexuals, because that was changed
by the New Testament') [213], these groups
have stated that there is sufficient protection available. It is also
argued that there is no need for what are perceived as special rights,
particularly for people who may be seeking to advocate their particular
sexual 'preference', or seeking the 'normalisation of homosexuality'.
[214]
2.93 There was a clear opposition to any privileges
being extended to non-heterosexual and transgender people, as opposed
to their access to ordinary rights. The Sexuality Discrimination Bill
1995 was seen as promoting such privileges especially through the ani-vilification
provisions of the legislation. [215]
2.94 What is usually meant in respect of there
being sufficient protection available is the theoretical equal access
by all members of the community to appropriate remedies: 'Existing laws
protect all citizens in cases of assault and libel.' [216]
Some witnesses also suggested that non-heterosexuals should not be asking
for 'special' rights, especially if they are seen as discriminating
against other people. [217]
2.95There appeared to be some variation between
members of a religion about the extent to which they accepted non-heterosexuals.
One witness stated that there had been changes in the attitudes of religions
other than Christianity and these should also be acknowledged:
'In particular, the reform and reconstruction
branches of Judaism are now ordaining gay men and lesbians as rabbis.
A number of branches of Buddhism are changing their perspective and
accepting gay, lesbian, bisexual and transgender people; in fact,
they are bringing in ceremonies for joining same-sex couples.' [218]
2.96 Many of the mainstream Christian religions
have made statements about homosexuality, generally making a distinction
between people being homosexual and leading a homosexual lifestyle.
[219] However, there is not necessarily
uniformity within churches; the Uniting Church, for example, has been
openly divided on the subject. One witness spoke of the reaction to
workshops on discrimination:
'There has been quite a controversial position
where a Uniting Church mainstream organisation has actually funded
a program which some constituents of the religious groups feel is
recruiting rather than supporting and assisting people in need. This
has caused quite a few divisions amongst the people in that church,
amongst the people who are the worshippers, and also amongst the staff
of a very large organisation.' [220]
2.97 Some churches do not appear willing to accept
persons as members unless they are heterosexual, [221]
and, while many religious groups may accept some non-heterosexuals into
their membership, this acceptance is conditional:
'Most churches are moving towards an open position
of accepting homosexuals into their churches as people seeking after
change, but they are not accepting them in the sense of accepting
their lifestyle.' [222]
2.98 In some cases this acceptance was more generous
than it might appear at first sight, in that the issue of privacy and
restraint seemed to be highly valued - those who did not advertise themselves
as openly non-heterosexual were more tolerated. [223]
This situation demonstrated the concern held by some religious groups
about discretion, although it also indicated a belief that sexuality
was a matter of choice and self-control. [224]
2.99 In some churches there was a respect for
privacy to the point of not wishing to see any re-introduction of the
criminal penalties for private consensual sexual activity. [225]
In others, there was a clear desire to have nothing to do with any practices
by people who did not obey certain precepts - in this context, heterosexuals
might also be unwelcome depending on their actions: ''Because of our
conscience before God, we would not...knowingly employ a sodomite, fornicator
or adulterer ...[or] work in a place used for prostitution or sodomy.'
[226]
2.100 Some national and established churches
were perceived as having a range of responses to people of other than
heterosexual status, ranging from acceptance to homophobia and intolerance:
'My two Pastors support my sense of call and
accept and affirm my sexuality. They do not see sexuality as a bar
to participation. The view of my Pastors is not held by all members
of the Congregation, some are conditionally supportive and others
are openly homophobic, unsupportive and discriminatory.' [227]
2.101 While this may not represent a church's
agreed stance [228] some witnesses suggested
that the variety of responses and the freedom to discriminate within
churches could result in discrimination, including in employment. Members
of churches might not be accepted as pastors or priests, or might not
be able to work with all members of a community: [229]
'As Catholics we have a particular perspective
on these issues. It could justifiably be claimed that Catholics, more
than any other group in the gay and lesbian community, have been and
are still being oppressed by reason of their sexual identity ... It
is clearly the case that amongst the most oppressed and [fearful]
... gay and lesbian people are teachers in Catholic schools.' [230]
2.102 In other instances, members of some religions
might actively seek not to employ people of certain sexual orientations
in their businesses, even if these were not services provided directly
by a church: 'why should we be obliged by legislation to maintain a
lesser standard of moral protection in our places of business than in
our homes?' [231] Awareness of this problem
had led to an exemption being suggested for 'small' businesses in the
draft legislation. [232]
2.103 Discrimination or exclusion could also
occur in church operated services, even if these were government funded:
[233]
'[a young woman] had gone to one of the church
run welfare organisations here in Sydney ... and when she walked in
she saw a sign on the wall that said, "If you are not part of
a traditional family structure, don't bother asking for help."'
[234]
2.104 It was accepted by many spokespersons that
one had to make a distinction between a person's sexuality (which was
not necessarily a matter of choice) and the practice of this sexuality,
or the advocacy of such sexuality in a wider forum - for example, in
education or in child care services. [235]
One submission noted that:
'...it would appear that a clear distinction
must be drawn between sexual conduct and sexuality. A person's sexuality
does not of itself mean that he or she will engage in any particular
type of sexual conduct. For example, in the same way that a heterosexual
may engage in sodomy, a homosexual may choose celibacy.' [236]
2.105 While identifying a difference between
being homosexual, and undertaking homosexual acts, some organisations
also indicated that they did not in any way mean that acceptance of
the person should be seen as acceptance of any sexual action of the
person:
'The particular inclination of the homosexual
person is a more or less strong tendency ordered toward an intrinsic
Moral Evil and this inclination itself must be seen as an objective
disorder. Therefore special concern should be directed toward those
who have this condition lest they be led to believe that the living
out of this orientation in homosexual activity is a morally acceptable
option.' [237]
2.106 This distinction between orientation (and
the difficulty or impossibility of changing this) and supporting or
expressing this sexuality is similar to the attitudes referred to above.
2.107There may be limited support by some religious
groups for anti-discrimination legislation but it is likely that most
would take advantage of the exemptions currently offered in the draft
legislation. [238] In contrast, the Social
Responsibilities Commission of the Anglican Church (Anglican Province
of Western Australia) did not support the idea of exemptions for religious
bodies, [239] but appreciated the fact that
they might be required for a short period:
'I suppose that much of the problem in those
respects is a whole lot of stereotyping of homosexual people. That
is to say there is a view that there is some connection between homosexuality
and paedophilia, and that there is some relationship between homosexual
people who are predatory: all of those kinds of things. They are stereotypes.
I would have thought that the exemptions would have to be there for
as long as it takes to be educative.' [240]
2.108 In considering the basis of action and
reaction within society, evidence was given which suggested that it
was important to separate the principles of a society from various practices
which people would find unacceptable:
'We have said, "The principle is that
people have to be treated with respect and dignity, and this is the
basis of a civilised society." I suppose what we are saying is
that we are allowing people to act in emotional ways, irrational ways
or fervent ways, if you like, within those different areas, but there
comes a point where it is not right. I think this is the difficulty
that every society has: how to balance out the individual good versus
the collective good.' [241]
2.109 Another issue raised by witnesses was the
need for a reduction in discrimination so that all members of society
could contribute, and could also develop their own potential without
fear. Although there was not much detailed discussion on the practical
effects of discrimination in areas such as employment, there was an
awareness that this went beyond the loss of income and independence
of the individual. The community also lost the talents of many of its
members. and young people lost role models. [242]
2.110 Other witnesses provided information on
the health effects of discrimination, [243]
the stress caused by trying to pass as heterosexual; and noted that
the concern experienced by many people - of being exposed, of being
intimidated - was sufficient to limit their development as individuals:
'It impinges on people's ability to function
in society, to contribute to society if they are so scared about going
for a job because if someone finds out they are gay, they are going
to lose it; if they are so scared that they cannot contribute in other
ways towards the community because they are not going to be accepted.
It is not just about political correctness. Definitely, it is about
the impact that it has on people, the impact on their self-esteem.'
[244]
2.111 In this environment it is appropriate for
governments to examine a situation to determine if the community is
being disadvantaged by legislation that may no longer reflect beliefs
and attitudes. While some witnesses saw that government (or government
legislation) was backward, relative to community perceptions, [245]there
was a strongly expressed belief that although legislation was not the
only answer, [246] it was an integral part
of change:
'...there are really two different issues in
relation to this legislation. One is the fact that it provides legal
remedy when you are discriminated against. But, in some ways more
importantly, it sets a benchmark, it takes a stand and says, 'This
discrimination is unacceptable' ... When Martin Luther King and his
colleagues tried to introduce equal opportunity laws and civil rights
for blacks in America, many whites argued against that and said, "You
can't change people's attitudes and opinions with legislation."
He retorted by saying, "Judicial decrees may not change the heart
but they can restrain the heartless." I think that is important
because what he is saying, and what I concur with, is that when the
parliament takes a stand on behalf of the community and says, 'Look,
this is wrong. We are providing a beacon, a sentinel of what is just',
that is often more important than the actual practicality of the bill
itself.' [247]
2.112 For others, anti-discrimination legislation
had gone too far and was an invasion of people's individual rights.
[248] Hence, they did not support any legislation
dealing with sexuality or transgender issues. Others also believed that
there were no international obligations that Australia had to meet in
this respect. [249]
2.113 Since 1996 when the Committee began taking
evidence on this inquiry, there have been some changes, including the
introduction of further State legislation. A number of developments
have occurred overseas, including the establishment of partnership recognition
arrangements which has the support of churches even though it is not
a form of marriage; and the extension to people of various civil rights
regardless of sexuality or gender identity.
2.114 Although these changes may add further
weight to arguments that the level of international interest or even
'concern' is sufficiently great to ensure Australia meets its obligations
in the international arena, there is still considerable argument that
no such obligations exist; or that, if they do, they have been met more
or less by existing legislation and administrative arrangements. Similarly,
it could also be argued that the development of anti-homosexual legislation
in some forums is indicative of continued opposition to granting recognition
of rights. In order to assess these views, the Committee has considered
them in detail in the following chapters.
Footnotes:
[1] These issues are
discussed in Chapter 3.
[2] See Chapter 4.
Evidence, Equal Opportunity Commission
Victoria, p. 229. Submission, Equal Opportunity Commission Victoria,
Vol 7, p. 1465.
[3] Submission, Kingsford
Legal Centre, Vol 5, p. 924.
[4] Evidence,
Australian Bisexual Network, p. 671.
[5] Submission,
Equal Opportunity Commission Victoria, Vol 7, p. 1464.
[6] Evidence,
Equal Opportunity Commission Victoria, pp. 223 and 229.
[7] Evidence,
Equal Opportunity Commission Victoria, p. 223.
Submission, Gay and Lesbian Rights Lobby,
Vol 5, pp. 1019-1020.
[8] Submission,
Gay and Lesbian Rights Lobby, "Previously well-regarded
employees suddenly receiving poor work performance reports when their
sexuality is disclosed, unfair dismissals." Vol 5, p. 1017.
[9] Evidence,
Queensland Association for Gay and Lesbian Rights, pp. 729 and 734.
[10] See Chapter 4.
[11] Examples, Evidence,
Council for Equal Opportunity in Employment, p. 43.
Submission, ACTU, Vol 8, p. 1655.
[12] Examples, Submission,
Gender Council of Australia (WA) Inc, "the current situation
for gender dysphoric persons is such that they tend to lose heart and
drop out of the mainstream. Thus the contribution that they could make
is reduced or lost." Vol 6, p. 1271.
Evidence, Australian Bisexual Network,
"There can be degrees of discrimination and so forth, along the
same lines as a gay or lesbian person would experience. Alternatively,
if you were applying for positions in maybe some gay and lesbian businesses,
you may not be favoured." p. 674.
Evidence, Lesbian and Gay Community Action,
p. 471.
[13] Submission,
Kingsford Legal Centre, Vol 5, p. 924.
Evidence, Lesbian and Gay Youth Services,
"A lot of people who experience discrimination at school end up
just dropping out because there are not a lot of options available for
them apart from going to a different school or leaving school altogether....Theoretically,
you can become a mature-age student later in life or go to TAFE but
usually the result is that that person does not complete their education
and is then unable to be as employable as they could have been."
p. 170.
Evidence, PFLAG, pp. 652-653.
[14] Evidence,
Queensland Anti Discrimination Commission, p. 691.
[15] Submission,
Gay and Lesbian Welfare Association, "Other people had left
work because no action was taken by management", Vol 11, p. 2466.
[16] Evidence,
Council for Equal Opportunity in Employment, pp. 43-44.
[17] Evidence,
Queensland Association for Gay and Lesbian Rights, p. 729.
[18] Submission,
Gay and Lesbian Lawyers, Vol 3, p. 483.
Evidence, Ms Langley, "What happens
to these people's self -esteem when they have difficulty getting employment
in the first place is that it lowers their expectations of being able
to get work. They eventually stop looking. There is a cycle for a number
of transgendered people when one thing goes wrong and they just go downhill
from there and they get trapped in poverty." p. 304.
Evidence, Australian Transgender Support
Association Inc, p. 792.
[19] Submission,
Gay and Lesbian Lawyers, Vol 3, p. 494.
Evidence, Lesbian and Gay Community Action,
p. 471.
Evidence, ACTU, "where the issue
of denial of access to superannuation was identified as a problem causing
financial hardship in some relationships", p. 314.
[20] Evidence,
The Queensland Association for Gay and Lesbian Rights noted that transgender
persons were not covered by industrial legislation, p. 729.
[21] Evidence,
Anti Discrimination Board of New South Wales, p. 110.
[22] Evidence,
The Chameleons, pp. 512-513.
[23] Submission,
Ms J Aspen, Vol 1, pp. 45-46.
[24] Evidence,
Australian Transgender Support Association Inc, p. 793.
[25] Submission,
Ms C Ronalds, Vol 2, pp. 298-299.
Evidence, Ms Langley; pp. 295-296.
Roberta Perkins, Transgender Lifestyles and
HIV/AIDS Risk (1994), p.3.
[26] Evidence,
Ms Peters, pp. 296 and 306.
[27] Evidence,
Council for Equal Opportunity in Employment, p. 439.
Submission, Gay and Lesbian Rights Lobby,
Vol 5, p. 1017.
[28] Submission,
Kingsford Legal Centre, Vol 5, p. 924.
Evidence, ACTU, pp. 310, 315.
Evidence, GLAD, p. 336.
[29] Evidence,
ACTU, p. 315.
[30] Evidence,
Salt Shakers, "..it was only after significant lobbying against
the bill, mainly from church groups and schools, that exemptions were
inserted on religious grounds. The homosexual community wanted unimpeded
access to all groups.", p. 250.
On the issue of choice, see Chapter 2, Paragraphs
2.87-2.88.
[31] Evidence,
ACTU, pp. 317 and 323.
Evidence, Mr C Kendall, p. 615.
[32] Evidence,
Association of Catholic Parents, p. 756.
[33] Submission,
Context, Vol 1, p. 213.
[34] Evidence,
GLAD; p. 335.
Evidence, Human Rights and Equal Opportunity
Commission Tasmanian Regional Office, pp. 348, 352.
Evidence, Tasmanian Gay and Lesbian Rights
Group, p 363.
Evidence, Ms Rogers, pp. 440-442, 446.
Submission, Fringedwellers Community,
Vol 11, p. 2490.
[35] Evidence,
Anti Discrimination Board of New South Wales, p. 115.
[36] Evidence,
Lesbian and Gay Anti Violence Project, p. 199.
See also Evidence, Salt Shakers, pp 250-251.
Evidence, Aids Council of New South Wales,
pp. 167-168.
[37] Submission,
Gay and Lesbian Welfare Association Inc., Vol 11, p. 2466.
[38] See Chapter 3,
Paragraph 3.18.
[39] Evidence,
Commonwealth Attorney General's Department, p. 6.
[40] Evidence,
Mr W. Morgan, p. 278.
[41] Submission,
Ms R Cowling, Vol 2, p. 286.
[42] Submission,
Gay and Lesbian Lawyers, “Homophobia, like gender, is an issue
that tests the health system and health policy...many services provide
well for the treatment of diseases of affluent males and they provide
least well for the preventive needs of those at the margins. Similarly,
they can inhibit access by homosexual men and women because in their
apparent equity, they can be insensitive or even hostile. Some would
argue that, in effect, the entire health system is biased particularly
to meet the special health needs of heterosexual males: such as comprehensive
coronary care facilities and accident and emergency departments.”
Vol 3, p. 508.
[43] Submission,
Australian Bisexual Network, Vol 8, p. 1616.
Evidence, GLAD, p. 334.
Submission, GALL, Vol 3, p. 508.
[44] Example, Evidence,
Equal Opportunity Commission Victoria, p. 230.
Evidence, Salt Shakers, p. 259.
[45] Submission,
Ms Thompson and Ms Connor, Vol 5, p. 932.
Submission, GALL, In contrast, a social
work unit in a major Sydney hospital had undertaken work on the rate
of random physical violence based on sexuality, indicating an awareness
of the problems of non-heterosexual communities, Vol 3, p. 508.
Evidence, GALL, p. 193.
[46] Submission,
Australian Bisexual Network, Vol 8, p. 1616.
Submission, GALL, which lists the effects
of homophobia, Vol 3, p. 502.
Evidence, p. 445.
Submission, Gay and Lesbian Welfare Association
Inc., 'although homosexuality is not a pathology and although homosexuals
are no more likely to suffer psychiatric disturbance than the general
population there exist many more avenues whereby a homosexual person
may suffer psychiatric distress than for the general population.
Frequent themes in counselling calls received by the Association are
loneliness, isolation, depression, low self -esteem and helplessness.
These feelings are engendered by a stigmatisation of the caller, or
a perception by the caller of stigmatisation, because of the caller's
sexuality.' Vol 11, pp. 2464-2465.
Submission, Mr James Peck, Vol 11, p.
2476.
[47] Evidence,
Ms Langley, p. 304.
[48] Submission,
Ms C Ronalds, Vol 2, p. 299.
However, some of these problems had been overcome
by early 1996,
Submission, Department of Health and Family
Services, Vol 11, pp. 2557-2558.
[49] Evidence,
Department of Health and Family Services, p. 791.
[50] Submission,
Department of Health and Family Services, Vol 11, p. 2558.
[51] Submission,
GALL 'where charities or voluntary bodies receive public funding,
it is inappropriate for them to act contrary to public policy.' Vol
3, p. 481.
Submission, Context, Vol 1, p. 215.
[52] Evidence,
Queensland AIDS Council, pp 713-714.
Submission No. 281, Queer Sexuality Collective,
Vol 11, p. 2482.
[53] Evidence,
Christian Outreach Centre, p. 786.
[54] See Chapter 4,
Paragraphs 4.183-4.193.
[55] See Chapter 2,
Paragraph 2.102.
[56] Evidence,
pp. 169-170. It was also believed that there was some discrimination
within existing specialist services- for example, that AIDS services
were primarily for gays and lesbians, not bisexual or transgendered
persons (see Submission, Australian Bisexual Network, Vol 8,
pp. 1615, 1617.) This situation may reflect the awkward situation of
bisexual and transgender people, who claim not to be supported in some
instances by homosexual groups.
Evidence, Australian Bisexual Network,
pp. 671, 672 and 676.
[57] See Chapter 4,
Paragraphs 4.183-4.193.
[58] Most evidence
given related to violence and harassment from people in public. However,
there was an acknowledgment that there could be domestic disputes and
worse between same sex couples
Evidence, Ms J Millbank; p. 144.
Submission, Gay and Lesbian Welfare Association
Inc., Vol 11, pp. 2466-2467.
Information was provided that de facto couples
generally were more prone to violence and that therefore it would be
a mistake to extend this status to same sex couples, but no evidence
was attached to demonstrate this -
Submission, Ms V. Salkin, Vol 2, p. 222.
[59] Evidence,
Lesbian and Gay Community Action, pp. 475-476.
Evidence, The Chameleons in respect of
the response to rape of a transgender person, pp. 511-512.
Submission, Fringedwellers Community,
which comments on the positive support of police in one instance, Vol
11, p. 2490.
[60] Submission,
Mr W Anderson, Vol 2, p. 273.
Evidence, Lesbian and Gay Community Action;
p. 462.
Evidence, Mr A Hosken, pp. 619-620, 621,
622, 625.
[61] Evidence,
Gay and Lesbian Rights Lobby, p. 180.
[62] Evidence,
Anti Discrimination Board of New South Wales, p. 115.
[63] Evidence,
Lesbian and Gay Anti-Violence Project, p.191.
[64] Evidence,
Lesbian and Gay Anti-Violence Project, pp. 192, 199.
Evidence, Queensland Anti-Discrimination
Commission, p. 695.
[65] Evidence,
Lesbian and Gay Community Action, p. 461.
[66] Evidence,
Tasmanian Gay and Lesbian Rights Group, pp. 375-376.
[67] Evidence,
Lesbian and Gay Anti-Violence Project, pp. 188-189, 191, 194-196.
Evidence, Lesbian and Gay Community Action,
pp. 461-463, 475-476.
Evidence, Mr Anthony Hosken, p. 629.
[68] Submission,
Gay and Lesbian Police Employees Network Victoria, Vol 13, p. 3158.
[69] Evidence,
GLAD, p. 334.
Evidence, PFLAG, p. 649.
Submission, Fringedwellers Community,
Vol 11, p. 2489.
[70] Submission,
Gay and Lesbian Teachers and Students Association Inc, Vol 13, pp.
3038-3056.
[71] Submission,
Fringedwellers Community, Vol 11, p. 2489.
[72] Submission,
Queer Sexuality Collective, Vol 11, p. 2483.
[73] Submission,
GALL, Vol 3, p. 494.
Submission, Context, Vol 1, p. 214.
Submission, Mr James Peck, Vol 11, p.
2477.
[74] Evidence,
GLAD, p. 334.
Evidence, Ms M Rogers, which discusses
what is and is not acceptable to discuss in schools, pp. 439, 441.
[75] See Chapter 2,
Paragraphs 2.64-2.68 and also Chapters 4 and 6.
[76] Submission,
ACTU, Vol 8, pp. 1661, 1678.
Submission, Tasmanian Gay and Lesbian
Rights Group, Vol 8, p. 1741.
Submission, Australian Bisexual Network,
Vol 8, p. 1616.
[77] Submission,
Inner City Legal Centre, Vol 12, pp. 2741-2742.
[78] Submission,
Kingsford Legal Centre, Vol 5, p. 923.
[79] See Chapter 2,
Paragraphs 2.78 - 2.79.
Submission, Ms Thompson and Ms Connor,
Vol 5, p. 932.
[80] Evidence,
AIDS Council of New South Wales, p. 166. A major source of information
on violence and on other forms of discrimination is the report produced
by GLAD (Gay Men and Lesbians Against Discrimination), which was referred
to in a number of written and oral submissions:
Submission, Equal Opportunity Commission
Of Victoria, Vol 7, pp. 1463-1464.
Evidence, p. 222-223.
Evidence, Anti Discrimination Board of
New South Wales (reference is made to the Lesbian and Gay Anti Violence
Project ) p. 110.
Submission, Ms R Cowling, Vol 2, pp. 285-286.
Evidence, Gay and Lesbian Rights Lobby
and AIDS Council of New South Wales, pp. 164, 173.
[81] Evidence, Australian
Bisexual Network, pp. 676-677.
[82] Submission,
Kingsford Legal Centre, Vol 5, p. 923.
Submission, Ms C Ronalds, Vol 2, pp. 298-299.
[83] Evidence,
Human Rights and Equal Opportunity Commission, Tasmanian Regional Office,
p. 354.
[84] Evidence,
Ms Peters, pp. 296, 306 (see also above, Paragraph 2.11)
Submission, Ms J Aspen, Vol 1, p. 45.
Evidence, The Chameleons, p. 512.
[85] See Chapter 2,
Recommendation 1 following Paragraph 2.41.
[86] Evidence,
New South Wales Anti Discrimination Board, p. 107.
Evidence, North Melbourne Legal Service,
p. 326.
[87] Evidence,
Mr Sid Spindler, p.242.
[88] Sex Discrimination
Act 1984, Section 28A.
[89] Sex Discrimination
Act 1984, Section 28A(2).
[90] Racial Discrimination
Act 1975 Section 18C.
[91] Evidence,
Ms J Millbank, pp. 140-141.
Evidence, Metropolitan Community Church,
pp. 180-181.
Evidence, Lesbian and Gay Anti-Violence
Project, p. 188.
Alternative view see: Evidence, Dr Reece,
p. 767.
[92] Evidence,
Lesbian and Gay Youth Services, p.169.
[93] Evidence,
Gay and Lesbian Rights Lobby and Metropolitan Community Church, p. 180.
Evidence, Lesbian and Gay Anti Violence
Project, p. 188.
Evidence, ALSO, p. 325.
[94] See Chapter 2,
Paragraph 2.91.
Evidence, Lesbian and Gay Youth Services,
p. 177.
[95] Evidence,
AIDS Council of NSW, pp. 167-168.
Evidence, Metropolitan Community Church,
pp. 171-172, pp. 180-181.
Evidence, Lesbian and Gay Anti-Violence
Project, pp. 189-190.
Evidence, Mr Sid Spindler, p. 237.
Evidence, ALSO, p. 325.
[96] Evidence,
Dr Reece, p. 767.
[97] Evidence,
Dr Reece, p. 767.
[98] Evidence,
Salt Shakers and Focus on the Family, p. 249.
Evidence, Calvinistic Political and Social
Association, p. 664.
[99] Evidence,
Victorian Council for Civil Liberties, It was also suggested that if
there was separate legislation dealing with violence/vilification, this
might make the offences less important, less 'mainstream', p. 803.
Evidence, Senator Abetz, 'during the racial
hatred hearings...there was a submission...that argued that the creation
all around Australia of, in effect, a separate offence of domestic violence
nearly degraded domestic violence as being something lesser than a criminal
assault and did not let people be treated who perpetrated domestic violence.
They suggested that, in fact, being offenders of a violent nature, somehow
you put the tag of domestic violence on it and it really did soften
it somewhat', pp. 179-180.
[100] Evidence,
Gay and Lesbian Rights Lobby, p. 180.
Evidence, Mr Anthony Hosken, 'what you
will change with your legislation is that you will empower people. That
is what equal opportunity is all about.' p. 624.
[101] Evidence,
Salt Shakers, p. 250.
Submission, Ms Thompson and Ms Connor,
'While the right to free speech is an important element in any democracy
it should not allow anyone to advocate violence and murder.' Vol 5,
p. 935.
[102] Evidence,
Salt Shakers, pp. 250-251.
[103] Evidence,
Metropolitan Community Church, p. 171.
[104] See Chapter
2, Paragraph 2.91.
[105] Evidence,
Lesbian and Gay Youth Services and Metropolitan Community Church, pp.
169, 172.
[106] Submission,
Australian Family Association, WA Branch, Vol 2, p. 257.
[107] Submission,
Australian Bisexual Network, Vol 8, p. 1615.
[108] Evidence,
Anti-Discrimination Board of New South Wales, p. 110, and see above
Paragraph 2.11. Reference was also made to a case of murder where, although
it was not clear if a transgender person was the victim, the appearance
of a man dressed as a women was deemed a form of provocation justifying
a violent attack.
[109] Evidence,
Australian Transgender Support Association Inc, pp. 792-793.
Submission, Ms Abbie Hughes, Vol 6, p.
1297.
[110] Evidence,
Ms Peters, p. 296.
Evidence, Australian Transgender Support
Group Inc, p. 290.
[111] See above, Paragraph
2.44.
[112] See above, Paragraphs
2.29, 2.46-2.47.
[113] NSW Anti
Discrimination Act 1977, Sections 20B, 20C, 20D.
[114] NSW Anti
Discrimination Act 1977, Sections 38R-T, 49ZS-ZTA, and 49ZXA-ZXC
respectively.
[115] Sexuality
Discrimination Bill 1995, Clause 26.
[116] Evidence,
Commonwealth Attorney General's Department, p. 6.
[117] Evidence,
Victorian Council for Civil Liberties, p. 803.
[118] Evidence,
Mr W. Morgan, p. 278.
Evidence, Ms K. Walker, p. 279.
[119] Evidence,
Victorian Council for Civil Liberties, p.801.
[120] Sexuality
Discrimination Bill 1995, Clause 26(3).
[121] Evidence,
Victorian Council for Civil Liberties, pp. 801-802.
[122] Submission,
Law Institute of Victoria, Administrative Law Section, - the Institute
stated that it was important for vilification to be recognised as being
directed to individuals as well as to groups, Vol 12, p. 2859. This
is covered by Section 26(2) of the Sexuality Discrimination Bill
1995 which refers to ' a person or group of people'.
[123] Submission,
Australian Festival of Light, Vol 4, p. 693.
Evidence, pp 767-768. Comments made by
Dr Reece suggest that there is a strong link between homosexuality and
childhood abuse, indicating that it is not a normal sexuality.
Submission, Women's International League
for Peace and Freedom, Australian Section, Vol 8, p. 1771.
[124] Evidence,
Dr V Cass, p. 522.
[125] There are some
exceptions to this , for example in the rate of government benefits
payable, where the couple rate is less than two single rates, with some
exceptions relating to rental assistance - see:
Evidence, Department of Social Security,
pp. 36-37.
However, as indicated below, the importance of
recognition of a same sex or transgender relationship may be seen as
outweighing the financial value of retaining two single rather than
a married couple payment.
Submission, Ms C Ronalds, Vol 2, pp. 303-312.
[126] Evidence,
Salt Shakers, p. 257.
Evidence, Focus on the Family, p. 262.
[127] Submission,
The Australian Family Association (W.A. Division), Vol 2, pp. 257,
268.
Submission, Endeavour Forum, Vol 3, p.
417.
Evidence, Baptist Churches of Tasmania,
pp. 412-413.
Evidence, Salt Shakers, p. 257.
[128] Submission,
Ms Thompson and Ms Connor, Vol 5, p. 933.
[129] Submission,
Religious Society of Friends (Quakers) in Australia Inc., Vol 11,
pp. 2509-2510.
[130] Submission,
Australian Family Association (W.A. Division), Vol 2, p. 267.
[131] Submission,
Australian Family Association (W.A. Division), Vol 2, pp. 267-268.
[132] Submission,
Catholic Women's League Australia, Vol 5, p. 1000.
Evidence, Salt Shakers, 'Why has marriage
and family traditionally been given, if you will, special privileges
and benefits? Simply because society has always looked on marriage and
family as such an important institution, not only for the raising of
children but for social cohesion...' p. 262.
[133] Evidence,
Tasmanian Gay and Lesbian Rights Group, 'It is not the policy of the
...Group that we must reject the family. [We]...would emphasise that
the definition of 'the family' should be broadened to include same-sex
couples.' p. 378.
Submission, Ms Frances Sutherland, Vol
4, p. 715.
[134] Evidence,
Tasmanian Gay and Lesbian Rights Group, p. 380.
[135] Evidence,
Department of Defence, pp. 20, 22.
[136] See the case
of Hope & Anor v NIB Health Funds Ltd where there was recognition
of the family of a homosexual couple.
Submission, Ms J Millbank, Vol 1, p. 118.
Other discussions of welfare costs relate more
to paying each individual a sum, rather than paying on the basis of
families.
Evidence, Mr Sid Spindler, p. 243.
[137] Submission,
HREOC, Vol 7, pp. 1583-1584.
Submission, Ms Thompson and Ms Connor,
Vol 5, p. 932.
[138] Submission,
HREOC, Vol 7, p. 1584.
Submission, Ms Thompson and Ms Connor,
Vol 5, p. 930
[139] Submission,
Ms Thompson and Ms Connor, Vol 5, p. 929.
[140] In superannuation
and insurance it is important to ensure that rates are not determined
by a person's sexuality rather than by their mode of life. In respect
of superannuation and insurance payments to partners, the issue is more
complex - see below, Chapters 4 and 6.
[141] Submission,
Equal Opportunity Commission Victoria, Vol 7, p. 1464.
[142] Evidence,
Australian Council for Lesbian and Gay Rights (WA), p. 568.
[143] Evidence,
Queensland AIDS Council, pp. 711, 719.
[144] Submission,
HREOC, Vol 7, p. 1583.
[145] Evidence,
Gay and Lesbian Rights Lobby, p. 165
Submission, HREOC, Vol 7, pp. 1586-1588.
Evidence, Australian Council for Lesbian
and Gay Rights(W.A.), p. 569.
Evidence, Queensland Association for Gay
and Lesbian Rights, pp. 722-723.
[146] Submission,
Ms Thompson and Ms Connor, Vol 5, p. 931.
[147] Submission,
COAL, Vol 3, p. 615-616.
Submission, Ms Thompson and Ms Connor,
Vol 5, p. 934.
Evidence, Mr Anthony Hosken, p. 624.
Submission, Mr Hosken, Vol 11, pp. 2502-2503
- the case referred to concerned loss of access because of HIV status.
[148] Submission,
HREOC, Vol 7, p. 1585.
Submission, Coalition of Activist Lesbians.
Lesbian co-mothers do not have clear rights except perhaps to pay child
support, Vol 3, p. 615.
Submission, Ms J Millbank, Vol 1, pp.
125-145.
[149] In some States
the state power to deal with de facto relationships has been transferred
to the Federal Family Court, but this does not affect non-heterosexual
relationships - see
Evidence, Queensland Gay and Lesbian Rights
Group, p. 725.
See Chapter 6.
[150] Evidence,
Tasmanian Gay and Lesbian Rights Group, p. 379.
[151] Evidence,
Victorian Equal Opportunity Commission, p. 230.
Evidence, Mr Sid Spindler, p. 242. An
outline of problems is given in Submission, the Law Institute
of Victoria, Maintenance and Property Section, Family Law Section, Vol.
16, pp. 3645-3646.
[152] Submission,
HREOC, Vol 7, p. 1588.
[153] Example, Submission,
Queensland Anti Discrimination Commission (QADC), Vol 2, p. 236.
[154] Evidence,
Queensland Association for Gay and Lesbian Rights, p. 734.
[155] If the cost
of re-assignment surgery is a major determining factor, socio-economic
status would also be important in determining what are major issues,
as they may also be for gay, lesbian and bisexual people.
[156] Transgender
people in particular experienced problems with documentation, including
difficulty in obtaining identification as being of a particular gender,
and this often led to a range of problems. These included: inability
to use certain benefits or concessions because these were made out in
a male name and the person identified as female (or vice versa); lack
of privacy, e.g. even if a passport was available in the gender of identity,
other documentation linked to that would still refer to the previous
gender; exclusion from any gender identity concessions or documentation
for those who were not post operative; limited recognition of relationships
which again were dependent on formal change of gender; possibly limited
access to certain services, such as medical services and AIDS information
and other services, and non-recognition of status in prisons.
[157] Evidence,
New South Wales Council for Civil Liberties, pp. 300-301.
[158] Submission,
Illawarra Legal Centre Inc, Vol 5, pp 914, 915.
[159] See Chapter
2, Paragraphs 2.11-2.12
[160] Evidence,
Anti Discrimination Board of New South Wales, pp. 109-110.
Submission, HREOC, Vol 7, p. 1588.
[161] See Chapters
4 and 6.
Super and Broken Work Patterns (1995),
Senate Select Committee on Superannuation, Report No. 17.
[162] Evidence,
Queensland AIDS Council, p. 720.
[163] Evidence,
Tasmanian Gay and Lesbian Rights Group, p.381.
[164] Most witnesses
did not go into theoretical discussions about the perpetuation by some
gay or lesbian couples of a heterosexual 'family' or couple structure.
These issues have been considered in numerous reports and articles.
[165] Evidence,
Mr C Kendall, p. 616, and see also:
Evidence, Mr C Kendall, 'insofar as families
are recognised as a form of benefit, and lesbian and gay domestic partnerships,
for example, are simply denied the opportunity to participate in that,
then I support any legislative effort which extends those benefits...I
would like to see in the future an attempt to extend those benefits
to different types of families, for example, to four or five women,
who for economic reasons, live together so that they might support their
children.' p. 615.
[166] Evidence,
Tasmanian Gay and Lesbian Rights Group, pp. 378-381.
Evidence, PFLAG, p. 649.
Evidence, Queensland Association for Gay
and Lesbian Rights, p. 725.
[167] Evidence,
Ms J Millbank, pp 138-140.
Evidence, Ms K Walker, p. 277.
Evidence, Queensland AIDS Council, p.
719.
Evidence, Queensland Association for Gay
and Lesbian Rights, pp. 724-725.
Evidence, Mr C Kendall, 'I think if gay
men, in particular, committed themselves a little more readily to gender
equality and to eliminating all forms of racial discrimination as they
should, that politically would be much more effective.' p. 615
[168] Submission,
Feminist Lawyers, Vol 8, pp. 1642-1643.
Evidence, Gay and Lesbian Rights Lobby,
p. 184.
Evidence, North Melbourne Legal Service,
p, 327.
[169] Evidence,
Ms J Millbank, where reference is made to the 'presumption of dependency'
in Social Security legislation, p. 141.
Evidence, Tasmanian Gay and Lesbian Rights
Group, pp. 367, 377.
See Chapter 6.
[170] Submission,
GALL, Vol 3, pp. 483-491.
[171] Evidence,
Ms J Millbank, p. 140.
See Chapter 1, Paragraphs 1.36-1.37.
[172] Evidence,
Ms J Millbank, p. 142.
[173] See Chapter
4.
[174] Evidence,
The Community and Family Rights Council, p. 394.
[175] Submission,
Kingsford Legal Centre, Vol 5, p. 922.
[176] Submission,
Equity Office of the University of Western Australia, Vol 5, p.
918.
[177] Evidence,
Australian Council for Lesbian and Gay Rights (WA), p. 573.
Evidence, Australian Family Association,
p. 577.
[178] Evidence,
Council for Equal Opportunity in Employment, p. 47, p. 50.
Evidence, Salt Shakers, pp. 252 and 257.
Evidence, Tasmanian Gay and Lesbian Rights
Group, p. 363.
Evidence, Calvinistic Political and Social
Association, p. 664.
[179] Evidence,
ALSO, p. 322.
Evidence, Association of Catholic Parents,
p.757.
Evidence, Australian Bisexual Network,
p. 675.
Evidence, Dr Reece, pp. 759-761, 772.
[180] Evidence,
Queensland Association for Gay and Lesbian Rights, p. 736.
Evidence, Association of Catholic Parents,
p. 739.
[181] Evidence,
Australian Family Association, p. 579.
[182] Evidence,
Dr Vivienne Cass, pp. 521-522.
[183] Evidence,
Australian Family Association, p. 579. Evidence, Association
of Catholic Parents, 'According to some statistics that have been given,
it is proved that many people - the more highly educated people - who
favour this lifestyle are amongst the higher income earners.' p. 750.
[184] Evidence,
pp. 164-166.
Evidence, Gay and Lesbian Counselling
Service of Western Australia:' ...from reports from clients and the
records we keep of clients we find that they come to the city because
it is just too hard in the country to manage because there is no way
that they can find people who have similar feelings.' pp. 553-554.
[185] Evidence,
AIDS Council of New South Wales, p. 166.
[186] Submission,
COAL, Vol 8, p. 1711.
Evidence, ALSO, pp. 322, 323.
Evidence, GLAD, p. 338.
[187] Evidence,
Adelaide Central Mission, p. 434.
[188] Evidence,
Australian Council for Lesbian and Gay Rights (WA), p. 564.
[189] Submission,
Australian Family Association (W.A. Division), Vol 2, p. 266.
Evidence, ALSO, p.321.
Submission, Ms R Cowling, Vol 2, p. 286.
Evidence, Association of Catholic Parents,
p 738.
[190] Submission,
Australian Feminist Law Foundation, Vol 6, pp. 1321-1322.
[191] Evidence,
Council for Equal Opportunity in Employment, p. 48.
[192] A further reason
for opposing the term 'lawful sexual activity' is lack of clarity and
possible exclusion from legal protection because of ambiguity or contradiction
- see
Submission, ACTU, Queensland Branch, Vol
11, p. 2240.
See Chapter 1, Paragraphs 1.30 -1.35.
[193] Submission,
Gay and Lesbian Rights Lobby Inc, Vol 5, p. 1024.
Submission, CONTEXT, '"Lawful Sexual
Activity" does not refer to a persons identity but rather behaviour
that is engaged in and consequently reduces identity to a set of behaviours.'
Vol 1, p. 210.
[194] Submission,
Australian Bisexual Network, which outlines some of the different
'identities' of bisexual people, such as being a parent, being of an
ethnic background etc, Vol 8, pp. 1622-1623.
[195] Evidence,
Queensland AIDS Council, pp. 715-716.
[196] See Chapters
4 and 5.
[197] Evidence,
New South Wales Anti Discrimination Board, p. 108.
[198] Evidence,
Australian Transgender Support Association Inc, p. 794.
[199] Evidence,
Australian Transgender Support Association Inc, pp. 795, 796.
[200] Evidence,
Australian Transgender Support Association Inc, p. 789.
[201] Evidence,
Gender Dysphoria Clinic, p. 297.
[202] Evidence,
Gender Dysphoria Clinic, p. 297.
Evidence, Australian Transgender Support
Association Inc, p. 793.
[203] Submission,
Mr Songailo, Vol 1, p. 183.
Evidence, Adelaide Central Mission, pp
430-431.
Evidence, Dr Roosevear, p.702.
Evidence, Association of Catholic Parents,
pp 750-751.
[204] Submission,
Mr Smeaton, Vol 1, p. 188.
[205] Evidence,
Baptist Churches of Tasmania, p. 421.
[206] Evidence,
Dr Roosevear, 'I did not choose to be gay but I do choose to be honest',
p. 699.
Evidence, Dr Roosevear, p. 702.
[207] The issue of
'choosing' to be non-heterosexual is too complex to be dealt with in
this report. Many witnesses provided information on the effect of destiny,
biology, psychology and human willpower. Regardless, while behaviour
may be a matter of choice it is less clear that sexuality per se
is a matter of choice.
[208] Evidence,
Gay and Lesbian Rights Lobby, p. 181, pp. 184-185.
Evidence, Queensland Association for Gay
and Lesbian Rights, p. 727.
[209] Evidence,
Queensland Association for Gay and Lesbian Rights, p. 736.
Submission, Mr Mark Riley, Vol 6, p. 1329.
[210] See Chapter
4, and Chapter 5 on the role of education in anti-discrimination legislation.
[211] Evidence,
Australian Family Association, p. 579.
[212] Many major religious
groups have stated that there could not be any tolerance of violence
and of some forms of discrimination: see
Submission, Australian Catholic Bishops
Conference, 'The Church has upheld and taught consistently that the
inherent and inviolable dignity of every human being, without exception,
must be the foundation for any examination of individual and communal
rights and responsibilities.' Vol 4, p.719.
Submission, Catholic Women's League Australia,
Vol 5, p. 1003.
[213] Evidence,
Salt Shakers, p. 250.
Evidence, Calvinistic Political and Social
Association, pp. 661,666.
[214] Evidence,
Salt Shakers, p. 249.
Evidence, Association of Catholic Parents,
p. 747.
Evidence pp 777, and 779, Assemblies of
God Queensland Conference.
[215] Evidence,
Association of Catholic Parents, pp. 738-740, 746, 747-748, 755.
Evidence, Australian Family Association,
p. 759.
Evidence, Dr Reece, p. 766.
[216] Evidence,
Salt Shakers, pp. 249, 256.
Submission, Catholic Women's League Australia,
'there is already adequate legislative scope for homosexuals and transsexuals
to seek redress before international law for suffering discrimination
or vilification.' Vol 5, p. 999.
[217] Submission,
Endeavour Forum, Vol 3, p. 417.
Submission, Australian Catholic Bishops
Conference, Vol 4, p. 719.
[218] Evidence,
Queensland Association of Gay and Lesbian Rights, p. 735.
[219] Evidence,
Baptist Churches of Tasmania, p. 421.
[220] Evidence,
AIDS Council of South Australia, p. 425.
Evidence, AIDS Council of South Australia,
pp. 429, 435.
[221] Submission,
Messrs Kelsey, Stevens and Way, Vol 2, p. 343.
[222] Evidence,
Salt Shakers - in this context, lifestyle does not mean numerous casual
relationships etc. but not hiding or avoiding sexuality issues, p. 250.
Submission, Uniting Church in Australia,
Vol 7, p. 1542.
Evidence, Mr Sid Spindler, pp 237-238.
Evidence, Calvinistic Political and Social
Association, pp 660-661.
[223] Evidence,
Focus on the Family, p. 259.
[224] Evidence,
Focus on the Family, p. 259.
[225] Evidence,
Salt Shakers, p. 257.
[226] Submission,
Messrs Kelsey, Stevens and Way, Vol 2, p. 343.
[227] Submission,
Mr W Anderson, Vol 2, p. 275.
Submission, Uniting Church in Australia,
Vol 7, pp. 1541-1542.
Evidence, Dr Roosevear, pp. 703-704.
[228] Submission,
Uniting Church in Australia, Vol 7, pp. 1544-1545.
[229] Submission,
See Mr W Anderson, Vol 2, p. 275.
Submission, Uniting Church in Australia,
Vol 7, p. 1546.
[230] Submission,
Acceptance Melbourne Inc., Vol 7, p. 1452.
[231] Submission,
Messrs Kelsey, Stevens and Way, Vol 2, p. 343.
Evidence, Baptist Churches of Tasmania,
p. 420.
[232] See Chapter
4, Paragraphs 4.50-4.51,4.53-4.54,4.70,4.11. However, small businesses
(up to five or six people, excluding members of the employer's family)
or partnerships, are traditionally exempted from anti-discrimination
legislation, primarily on grounds of privacy, choice, and practicality,
rather than religion.
[233] See Chapter
2, Paragraphs 2.22-2.24.
[234] Evidence,
Metropolitan Community Church, p. 172.
[235] Submission,
Calvinistic Political and Social Association, Vol 4, p. 705.
See Chapter 4, Paragraphs 4.205 - 4. 210: three
states provide an exemption from anti-discrimination legislation in
respect of people caring for children and young people. These exemptions
appear to be directed against non-heterosexuals.
[236] Submission,
GALL, Vol 3, p. 495.
[237] Submission,
Association of Catholic Parents, Vol 2, p. 389.
Submission, Association of Catholic Parents,
Vol 9, p. 2005.
Evidence, Association of Catholic Parents,
pp. 740-741.
[238] Submission,
Religious Society of Friends (Quakers) in Australia Inc., 'we do not
see the necessity for religious bodies to be exempt from any section
of the Bill.' Vol 11, p. 2509.
[239] Evidence,
Anglican Social Responsibilities Commission, p. 598.
[240] Evidence,
The Australian Gay and Lesbian Interfaith Federation, did not support
exemptions for churches (Submission Vol 6, p.1314); but indicated that,
if these were granted, they should be subject to an education process,
p. 603.
Evidence, The Metropolitan Community Church
was also opposed to exemptions although also aware that they may be
required, p. 171.
[241] Evidence,
Dr Vivienne Cass, p. 526.
[242] Evidence,
Ms K Walker; p. 282.
Evidence, GLAD, p. 334.
Evidence, Tasmanian Gay and Lesbian Rights
Group, p. 380.
[243] See above, Paragraph
2.19.
[244] Evidence,
Gay and Lesbian Counselling Service of Western Australia, pp. 557-558.
[245] Evidence,
Dr Vivienne Cass, p. 525.
[246] Evidence,
Tasmanian Gay and Lesbian Rights Group, p. 366.
[247] Evidence,
Australian Council for Lesbian and Gay Rights (WA), p. 570.
Evidence, PFLAG, p. 651.
[248] Evidence,
Australian Family Association, p. 586.
[249] See Chapter
3.
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