Inquiry into Sexuality Discrimination
SUMMARY OF RECOMMENDATIONS
CHAPTER ONE
Recommendation 1
That the term lesbian be included in the Sexuality
Discrimination Bill, as follows:
Clause 5, Definitions
'homosexuality'
'homosexuality' means the identity of being gay,
lesbian or homosexual.'
Recommendation 2
All organisations receiving Commonwealth funding
must provide access to services on equal terms to bisexual persons and
to transgender persons.
Recommendation 3
That 'asexuality' be added to the definition of
sexuality in the Sexuality Discrimination Bill.
Clause 5, Definitions
'Sexuality means heterosexuality, homosexuality,
bisexuality and asexuality'.
Recommendation 4
That 'heterosexuality' remain part of the definition
of 'sexuality'
Recommendation 5
That a more precise definition of transgender be
developed for the Sexuality Discrimination Bill 1995 to exclude
from coverage persons who do not identify as and seek to live as a member
of the sex opposite to their biological sex.
The suggested change is:
Clause 5, Definitions
'transgender person'
'A transgender person means a person originally
of one sex who:
(a) identifies and lives or seeks to live as a
member of the other sex and
(b) assumes the characteristics of the other sex
on a full time basis or as much as is reasonable in the circumstances;
and
(c) includes a transsexual
Recommendation 6
That the Sexuality Discrimination Bill 1995
define the word 'transsexual' to mean a person who is undergoing or who
has completed sexual re-assignment surgery.
The suggested change is:
Clause 5 Definitions
'Transsexual person'
'transsexual person means a person who:
(a) has undergone, or is in the process of undergoing,
a surgical re-assignment procedure, and
(b) who identifies and lives or seeks to live as
a member of the sex to which he or she has been reassigned or seeks to
be re-assigned.
Recommendation 7
That the name of the bill be changed to : Sexuality
and Gender Status Discrimination Bill 1997.
CHAPTER TWO
Recommendation 1.
That harassment of people on the grounds of their
sexuality or their transgender status (or perceived sexuality or transgender
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.
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,
either 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.
CHAPTER FOUR
Recommendation 1
That bisexuality be retained as a distinct sexuality
in the definition of 'sexuality' in Clause 5 of the Sexuality Discrimination
Bill 1995.
Recommendation 2
That in the Sexuality Discrimination Bill
1995 subparagraph (b) of the current definition of 'associate'
be amended as follows:
Clause 5, Definitions
'associate, (a) .....
(b) another person who is a partner of, or who
is wholly or mainly dependent on a partner or on a member of the household
of, the person;
Recommendation 3
That Clause 6 of the Sexuality Discrimination
Bill 1995 retain the reference to 'perceived' sexuality' of the 'aggrieved
person' and his or her relative or associate (6(1), and to an 'aggrieved
person or a relative or associate' being discriminated against because
of being 'transgender 'or because of being 'thought to be transgender'
(6(3)).
Recommendation 4
That past or future status of transgender persons
also be protected in the Sexuality Discrimination Bill 1995,
as follows:
Clause 5, Definitions
transgender status: 'a reference to transgender
status includes a reference to past or future status or perceived status'
Recommendation 5
That transgender persons who have clearly
identified as a man or a woman be acknowledged as such
The Sexuality Discrimination Bill 1995 has
accommodated this change at new Clause 6(5).
Recommendation 6
That the Sexuality Discrimination Bill 1995
add refusal to accept bisexuality as a distinct sexuality as a ground
of discrimination, as follows:
Clause 6(5)(c) Harassment of a person on the grounds
of bisexuality includes a refusal to accept bisexuality as a distinct
sexuality.
Recommendation 7
That Clause 30 (1) and 30(2) of the Sexuality
Discrimination Bill be amended to read:
30(1) (f) and 30 (2) (f):'if the discrimination
is based on relevant actuarial and statistical data; or
30(1)(g) and 30(2)(g): is reasonable, having regard
to other available relevant material; and
30(1)(h) and 30(2)(h): the person so discriminated
against may appeal to the Human Rights and Equal Opportunity Commission
for assessment of the basis of the decision, and must be provided with
the information on which the decision was based.'
Recommendation 8
That a body established for religious purposes
may not exclude a person from the receipt of services which are funded
directly or indirectly, in whole or in part, from Commonwealth funding,
on the grounds of the person's sexuality or gender status.
Clause 23 (1)...
23(2) A person or an organisation may not claim
an exemption from this provision on the grounds of religious belief
Clause 28. 'Subject to Clause 23, Divisions 1 and
2 ...'
Recommendation 9
That the Sexuality Discrimination Bill 1995
specify that discrimination on the basis of dress or appearance is prohibited.
Clause 6
(6) Discrimination includes a failure to offer
or continue employment, or to provide access to goods and services, on
the basis that a person's dress or appearance suggests he or she is of
a particular sexuality or is a transgender person, or is thought to be
of a particular sexuality or to be a transgender person, or has a relative
or associate who appears to be, or is thought to be of a particular sexuality
or a transgender person.
Recommendation 10
That, where affirmative action programs or services
are approved, the Human Rights and Equal Oportunity Commission should
review and report on these every second year, noting in particular:
- the need for such services;
- the benefits of providing such services; and
- the cost effectiveness of such services.
CHAPTER FIVE
Recommendation 1
That a clause be added to the Sexuality Discrimination
Bill 1995 which makes motive irrelevant.
Clause 6(7)
'In determining whether or not a person discriminates,
the person's motive is irrelevant.'
Recommendation 2
That indirect discrimination on the grounds of
sexuality be demonstrated to cause a disadvantage to the complainant
Replace Clause 6(2)(b) with the following:
Clause 6(2)(b) 'that, on the balance of probabilities,
is considered to cause disadvantage to the aggrieved person or group.'
Recommendation 3
That a Clause be added to the Sexuality Discrimination
Bill 1995 to cover indirect discrimination in respect of transgender
people.
Replace 6(4), which becomes 6(5), with the following:
Clause 6(4)(a) 'A person (the discriminator)
also discriminates against another person (the aggrieved person) on the
ground of transgender identity or status if the discriminator requires
the aggrieved person to comply with a requirement or condition that, on
the balance of probabilities, is considered to have a disadvantageous
effect on the complainant group;
(b) for the purposes of this Clause, a 'complainant
group' is restricted to transgender people of a particular gender, regardless
of re-assignment procedures.'
Recommendation 4
That all exemptions and exceptions provisions not
otherwise subject to review be assessed and reported on within three years
after the commencement of the Act with a view to determining if such provisions
are necessary and effective.
Add to Clause 31
31(4) The President of the Commission will ensure
that an organisation with appropriate legal qualifications and experience
in the field of human rights legislation will review and report on all
exemptions and exceptions, other than those subject to specific review,
within three years from the commencement of the Act. The President will
advise the Minister of the conclusions of this report.
Recommendation 5
That sexuality and gender discrimination issues
be dealt with by the Sex Discrimination Commissioner.
Remove Clauses 99-106, and replace as follows:
Clause 99 (1) The Sex Discrimination Commissioner
is to assume responsibility for issues of sexuality and gender discrimination.
(2) Within two years of the commencement of the
Act, the President of the Commission is to report on the management of
sexuality and gender complaints, including the appropriateness of the
Sex Discrimination Commisioner continuing to have responsibility for sexuality
and gender discrimination issues, and if there is a demonstrated need
for additional resources.
Recommendation 6
That the Human Rights and Equal Opportunity Commission
ensure that funding of information and education services on gender and
sexuality discrimination take account of the specific needs of transgender
and bisexual persons and allocate resources for appropriate services in
respect of these groups.
CHAPTER SIX
Recommendation 1
That a working group be established no later than
the date of commencement of the Act in order to review all Commonwealth
legislation, with priority being given to legislation affecting social
security and related payments (including Veterans Affairs); taxation;
superannuation legislation; health and family programs and services legislation,
and family law matters.
Recommendation 2
That current Clause 107 become new Clause 17.
Recommmendation 3
That the impact of the operation of new Clause
17 [formerly 107] be assessed by a qualified body two years after the
commencement of the clause.
Clause 17(5)
(a) The impact of this section is to be assessed
two years after its commencement, and a report provided to the President
of the Human Rights and Equal Opportunity Commission.
(b) To assist in evaluating impact, relevant Commonwealth
agencies and departments should collect appropriate data and provide this
in a de-identified form to appropriate agencies.
Recommendation 4
That a consistent and gender neutral definition
of living in a 'genuine domestic partnership', or in a 'bona fide domestic
partnership or relationship' be established and be used by all Commonwealth
agencies and departments.
Recommendation 5
That all couples or personal partnerships achieve
legal recognition at Commonwealth level
Clause 17[107] (3) After the commencement of this
Act, the law:
confers the same right or entitlement, or imposes
the same obligation, on a person who lives with another person, either
or both being a transgender person, because of the couple living together
on a genuine domestic basis'
Clause 17 [107] (4) the regulations may provide
that this section does not apply to a specified law of the Commonwealth.'
Recommendation 6
That a States/Commonwealth working party be established
to discuss the most effective way of providing standard identification
documents for all transgender persons who require them.
Recommendation 7
That, in conjunction with new Clause 17, all Commonwealth
superannuation legislation, and any related legislation, directly or indirectly
affecting payment to people on the grounds of their sexuality or their
gender status, be reviewed and amended.
Recommendation 8
That, in light of its previous work - Super
and Broken Work Patterns (1995) - the Senate Select Committee
on Superannuation be asked to consider and report further on any barriers
to superannuation contributors being able to nominate a specific beneficiary
or beneficiaries of lump sums, pensions or other payments. In particular,
the Committee is asked to examine the situation of persons who, whether
or not previously married or in a de facto relationship (including a same
sex or transgender relationship) are single at the time of death.