Inquiry into Sexuality Discrimination

Inquiry into Sexuality Discrimination

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:

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.