Chapter Four
PROVISIONS OF STATE AND TERRITORY SEXUALITY AND GENDER STATUS ANTI-DISCRIMINATION
LEGISLATION
Introduction
4.1 A number of witnesses argued that there was little need for Commonwealth
legislation, given the protection available though State and Territory
criminal and other law, and given also that most States and Territories
had specific anti-discrimination legislation addressing sexuality and,
to a lesser extent, gender status. [1] Six of
the eight Australian States and Territories prohibit discrimination on
the grounds of sexuality and four, namely New South Wales, South Australia,
the Australian Capital Territory and the Northern Territory, prohibit
discrimination on the grounds of transgender identity. [2]
The ACT also has the Domestic Relationships Act 1994, which covers a wide
range of arrangements and enables people to make formal financial arrangements
in respect of relationships. [3]
4.2 In 1994 the Commonwealth Human Rights (Sexual Conduct) Act was passed
in order to comply with the ruling of the United Nations Human Rights
Committee that Tasmanian legislation was in contravention of the ICCPR
in respect of privacy. The provisions of existing Tasmanian legislation,
the Criminal Code, were subsequently challenged in the High Court as contrary
to Federal human rights legislation and therefore invalid under S109 of
the Constitution. [4] In late February 1997
the High Court ruled that the Commonwealth legislation had precedence.
[5] Tasmania, although repealing sections of
its Criminal Code in April 1997, did not develop broader discrimination
legislation, and effectively covers only sex discrimination, pregnancy,
marital status and parental status, through its Equal Opportunity Act.
[6]
4.3 Western Australia anti-discrimination legislation covers sex, race,
age, marital status, pregnancy, family responsibilities and impairment,
[7] and extensive special measures are allowed
under Clause 35K of the legislation. In 1996 the Equal Opportunity Amendment
Bill was introduced which would have mirrored many provisions available
in other States and provided extensive protection to people specifically
in respect of sexuality discrimination. [8]
However this legislation was defeated in September 1996. [9]
Sexual intercourse between males was decriminalised in 1989.
4.4 There was support for non-heterosexual and transgender people taking
advantage of existing legislation such as that prohibiting assault and
violence in general. [10] At the same time,
some witnesses indicated, it was necessary to have specific anti-discrimination
legislation in order to make it obvious to the community that actions
which might be thought acceptable were in fact prohibited. [11]
In such instances, part of the purpose of specific sexuality or gender
discrimination legislation was education. [12]
4.5 However, it was apparent that specific sexuality and gender status
legislation was also supported in order to ensure that certain actions,
including physical violence, could be identified as reflecting a response
to sexuality or gender status. There are a number of reasons for this,
but the major ones are to demonstrate the extent of discrimination, and
to identify the extent of more subtle support of discrimination. The outcome
of this may include vindication of affirmative action or reverse discrimination;
support for certain policies, including access to sexuality-specific clubs
and organisations; and information that may affect the extent or continuation
of exemptions from the effects of legislation (such as exemptions for
religious and some educational bodies). [13]
Provisions of State and Territory Legislation
4.6 Much of the State and Territory legislation that exists has the mechanisms
required to meet the multiple objectives of anti-discrimination legislation,
which are to:
- prohibit discrimination in specific areas;
- ensure access to benefits and services on the same terms as the rest
of the community;
- educate the community about discrimination; and, in some instances,
- undertake positive action in respect of past loss and discrimination.
4.7 Nonetheless, there are some differences between the States and Territories
that reflect different concerns, and ultimately affect the extent to which
the above objectives are met. These include:
- groups covered by legislation - variations between States and Territories
mean some sexualities and gender status are not protected;
- the range of areas where discrimination is prohibited (such as employment
and the provision of goods and services). Variations may mean seriously
disparate situations for people on the basis of their living in a particular
State or Territory;
- exemptions from the provisions of legislation, which may affect employment
and education in particular; and
- the inclusion of affirmative action or positive discrimination sections.
Groups Covered by Legislation
Australian Capital Territory
4.8 The ACT probably provides the widest coverage both in coverage of
sexualities and associates/family and in the type of protection extended.
The ACT Discrimination Act 1991 uses the terms 'sexuality' and 'transsexuality'.
Sexuality includes 'heterosexuality, homosexuality (including lesbianism)
or bisexuality”. “Transsexual” is separately defined as
meaning a person of one sex who assumes the bodily characteristics of
the other sex whether by medical intervention or otherwise or identifies
himself or herself as a member of the other sex or lives, or seeks to
live, as a member of the other sex. The definition of transsexual is very
broad, and equivalent to 'transgender' in other legislation. There is
no meaningful distinction between recognised transgendered persons and
other transgendered persons as there is in the NSW legislation.
4.9 Other relevant ACT legislation includes:
- The Domestic Relationships Act 1994
- The Family Provision Act 1969, amended by the Family Provision
(Amendment) Act 1996 ; and
- The Administration and Probate Act 1929, amended by the Administration
and Probate(Amendment) Act 1996
4.10 This legislation does not refer to sexuality or gender, but expands
the nature of partnerships to include same sex partners and provide to
them many of the rights available to other spouses, married or de facto.
New South Wales
4.11 New South Wales anti-discrimination legislation in this area refers
to discrimination on the grounds of 'homosexuality' and 'transgender'.
While 'homosexual' is defined by the legislation as male or female homosexual,
it is recognised that it would be preferable to use the terms gay and
lesbian in order to encourage lesbians to perceive the legislation as
providing protection to them as well as to male homosexuals, [14]
a point made by several other submissions from other States in respect
of the proposed Commonwealth legislation. [15]
4.12 Although the legislation covers transgender people it does not specifically
assist bisexual people, [16] unless they identify
as homosexual. Heterosexuals are not covered under this legislation, and
asexuality is not specified.
4.13 In May 1996, the New South Wales Parliament passed the Transgender
(Anti-Discrimination And Other Acts Amendment) Act which amended the Anti-Discrimination
Act to additionally prohibit discrimination on transgender grounds. Whilst
this legislation differentiates between “recognised transgender persons”
(the record of whose sex has been altered) and “transgender persons”
(who have not undertaken any reconstruction surgery and may never do so),
it operates to provide anti-discrimination protection to both groups,
with one notable exception, in the area of status recognition. [17]
The legislation allowed for consequential amendments to a substantial
number of NSW Acts, including the Crimes Act and the Wills, Probate and
Administration Act.
4.14 The NSW Anti Discrimination Act includes amongst transgendered persons
a person who 'being of indeterminate sex, identifies as a member of a
particular sex'. [18] The provision was intended
to assist persons whose biological sex is not clearly either male or female
(e.g. hermaphrodites). [19]
South Australia and the Northern Territory
4.15 South Australia and the Northern Territory both use the term “sexuality”.
In both Acts sexuality is defined as meaning heterosexuality, homosexuality,
bisexuality or transsexuality (or “transexual” in South Australia).
This is somewhat confusing given that transgender issues are about gender
and not sexual orientation, [20] and transsexuals
may be seen by some people as a sub-group of transgendered persons, not
vice-versa. [21]
4.16 Transsexuality is not further defined in the Northern Territory
legislation. South Australia defines 'transexual' as meaning a person
of one sex who assumes characteristics of the other sex, but does not
determine the meaning of the term “characteristics”.
4.17 In theory, protection for transsexuals in South Australia includes
prohibition of direct and indirect discrimination. It is not clear how
the test for indirect discrimination would work in respect of transgender
persons. The test requires a person not being ably to comply with a requirement
with which a substantially higher proportion of persons of a different
sexuality can comply and which is not reasonable in the circumstances.
Strictly speaking this would require that persons of either male to female
status, or female to male status (formal or otherwise) be compared with
any group in the community which was not transgender. This does not take
into account the confusion caused by the word 'sexuality' in this context,
nor is there any distinction between male and female transgender people.
[22]
4.18 The Northern Territory Anti Discrimination Act prohibits discrimination
only on the basis of a person treating another person less favourably
(Section 20) because of any of the specified attributes, and does not
have an indirect discrimination clause.
4.19 The South Australian Sexual Reassignment Act 1988 regulates the
practice of sexual reassignment surgery and the subsequent alteration
of documents such as recognition certificates (Part III). Neither the
Act nor the Regulations under the Sexual Reassignment Act 1988 deal with
issues of people refusing to acknowledge a change of gender.
Queensland and Victoria
4.20 Queensland and Victoria both use the term “lawful sexual activity”,
but this is not defined; and logically speaking could not include transgender
people except on the basis of their sexual orientation. [23]
Organisations in both states have acknowledged that transgender people
are not covered by their legislation. [24]
There was some suggestion that aspects of transgender issues might be
covered under 'sex' provisions of legislation. However, most sex discrimination
legislation tends to exclude people of transgender status, though not
intentionally, through the terminology used and the grounds of discrimination:
'...in so far as transgender issues do not relate to a sexual orientation
they will not come under the lawful sexual activity provisions. In so
far as transgender issues relate to someone who identifies as a particular
gender, they cannot lodge a complaint under another gender.' [25]
4.21 In both States the term “lawful sexual activity” has been
interpreted to include homosexuality and heterosexuality, and implicitly
includes bisexuality insofar as this is not unlawful, although it does
not specifically mention this nor refer to asexual status. [26]
As noted above, the term 'lawful sexual activity' was seen as inappropriate
by some witnesses because it defines people by sexual activity rather
than by any other qualities. [27] The intention
of the Victorian legislation appears to have been to provide people with
a greater sense of identity:
'In introducing the legislation the Attorney General explains that
the term was intended to cover identity and status. So it is not just
a question of activity; it is a question of identity and status, and
that is the status of being homosexual, lesbian and/or heterosexual.'
[28]
4.22 However, the term 'lawful sexual activity' has also been criticised
not only on the basis of its defining people by sexual activity, but because
it does not clearly define what is meant by sexual activity. Physical
contact which is not explicitly sexual but may be indicative of a sexual
relationship (such as holding hands) may not be a protected activity.
Conversely, it is not clear if it is an offence. [29]
Tasmania
4.23 In Tasmania, certain sexual acts were proscribed under the Criminal
Code Act 1924, including male and female homosexual acts and some heterosexual
sexual activity. [30] These sections were repealed
in 1997, [31] which effectively means that
such activity between consenting adults is not unlawful. However, there
is no anti-discrimination legislation which provides any protection to
non heterosexuals in respect of employment, education, access to goods
and services, and so forth, and discrimination in these areas is not prohibited.
[32] The only anti-discrimination legislation
in Tasmania is the Sex Discrimination Act 1994, which specifically refers
to 'sex' in terms of 'gender'. As is the case with other sex discrimination
legislation, the interpretation of 'sex' or the phrasing of the legislation,
or both, would exclude coverage for people of transgender status. [33]
Western Australia
4.24 In Western Australia, the Equal Opportunity Amendment Bill 1996
sought to amend the 1984 Equal Opportunity Act by including sexuality
as a ground of discrimination. Sexuality included 'bisexuality, heterosexuality,
homosexuality, lesbianism or transexuality', and similar provisions to
other State and Territory legislation were made regarding employment,
education, access to goods and services, access to places and vehicles,
clubs and organisations, sport, land, superannuation and provident funds
and insurance (with provisos regarding actuarial data), and special measures
for equality, such as sexuality-specific clubs and accommodation. The
usual exemptions were proposed regarding religious organisations, and
private accommodation. Access to reproductive services (such as IVF) could
be limited except on the basis of race. This bill, however, was rejected.
[34] In August 1997 a similar bill was introduced
into the parliament by the Democrats and at the time this report was completed
was being considered by a Parliamentary Committee.
4.25 Changes were also sought to the WA Criminal Code which currently
explicitly rejects homosexuality as an acceptable practice even though
it is no longer criminal. [35] Some evidence
given to the Committee during its hearings in Perth stated that as a result
of the preamble to the decriminalisation legislation, organisations had
experienced loss of funding since measures seen as supporting homosexuality
were not permitted. [36] Reference was made
during the Committee's hearings in Perth to State legislation permitting
transsexual people to change their status legally, [37]
but this legislation was subsequently withdrawn.
Reasons given for excluding some sexualities from coverage
4.26 Discrimination on the basis of being heterosexual or bisexual is
prohibited in the ACT, NT, South Australia, Queensland and Victoria, but
not in NSW. Heterosexuals appeared not to have been included in the NSW
legislation mostly on the grounds that they were not discriminated against
on a systemic basis. [38] The exclusion resulted
from an earlier need to provide some protection for homosexuals relative
to heterosexual persons, 'because of the overwhelming weight of evidence
that homosexual people are subjected to significant and exceptional levels
of discrimination. There was little or no evidence of people being discriminated
against on the basis of their heterosexuality.' [39]
4.27 Although there appeared to be no clear reason for the lack of coverage
for bisexuals in New South Wales, some bisexuals indicated there was prejudice
in the gay and lesbian community against them. [40]
The Anti Discrimination Board of New South Wales considered that some
bisexuals would have been excluded from cover under the state legislation
'as they do not identify themselves as gay or lesbian.' [41]
Consequently, there was some consideration that the New South Wales Anti
Discrimination Act 1977 should be amended to cover heterosexuality and
bisexuality, and operate in conjunction with Commonwealth legislation,
[42] although still providing special measures
for homosexuals.
4.28 The Committee believes that there should be specific protection
for bisexuals.
Recommendation 1
That bisexuality be retained as a distinct sexuality in the definition
of 'sexuality' in Clause 5 of the Sexuality Discrimination Bill 1995.
4.29 The Committee has also recommended, at Recommendation 2 of Chapter
1, that bisexual and transgendered persons have access to services provided
by government funded organisations.
4.30 A similar opposition to coverage for heterosexuals was expressed
by some witnesses in other States. There was concern that the inclusion
of 'heterosexual' in the definition of 'sexuality' would effectively weaken
the provisions of the legislation, by extending protection to all as a
philosophical view which clashed with reality: 'I think we have to be
very careful when we are creating legislation such as this not to give
the illusion that there is a level playing field.' [43]
For others, there was a belief that while heterosexuals could be included
in some areas, to counter community perceptions of bias, special measures
or positive discrimination action should not be extended to heterosexuals.
[44]
4.31 Recommendation 4 in Chapter 1 recommends the retention of 'heterosexuality'
as part of 'sexuality'. In its further consideration below of the issue
of exemptions and of exceptions to the provisions of legislation, the
Committee has noted its general objection to the exclusion of any group
from publicly funded services. [45]
4.32 Insofar as New South Wales anti-discrimination legislation provides
substantial compensation, generally well above that paid through HREOC,
a failure to amend State and Territory legislation to cover heterosexuals
and bisexuals may effectively exclude some categories of people from access
to appreciable compensation, or any other specific benefit of legislation.
[46]
4.33 No legislation in Australia currently specifically refers to asexuality,
although there was little resistance to this being excluded from coverage.
[47] Recommendation 3 in Chapter 1 includes
'asexuality' in the definition of 'sexuality'.
Additional Coverage Through Disability Status (including HIV/AIDS)
4.34 Anti-discrimination legislation in all states and territories except
Tasmania prohibits discrimination on the basis of disability or impairment,
and the definition of impairment or disability is important. Queensland,
NSW, Victoria, ACT, NT and South Australia all include within the definition
a term such as 'the presence within the body of organisms that may cause
disease'. Although, practically speaking, this could include almost everyone,
the usual interpretation has been limited. The definition has been seen
as of particular relevance to people with HIV/AIDS and covers situations
where it could be claimed that it is not the sexuality of a person but
their health status that is the cause of discrimination. Of particular
importance in this definition is the phrase 'capable of causing disease'
or an equivalent, a phrase which may provide a basis for current discrimination
on the basis of assumed status in the future. [48]
4.35 It is not clear if the term used in the Western Australian legislation
('any defect or disturbance in the normal structure or functioning of
a person's body') [49] would also cover HIV/AIDS.
4.36 Only the NSW Anti-Discrimination Act 1977 specifically refers to
HIV/AIDS. In that legislation there are specific provisions in respect
of vilification on the basis of HIV/AIDS status. However, as this status
is either presumed or actual, and in the present, it cannot cover future
presumed status, which, as noted, would have to be developed through the
separate disability/impairment provisions in the same legislation. [50]
4.37 In Queensland there has also been some utilisation of disability
provisions in the anti-discrimination legislation since there is no specific
protection of HIV/AIDS status under sexuality:
'...discrimination on the basis of sexuality to some extent is picked
up ... through the impairment disability provisions of the act, with
the HIV people in particular using it under that heading rather than
the specific headings around gay and lesbian identity.' [51]
4.38 The Commonwealth Disability Discrimination Act 1992 provides Commonwealth
coverage on the grounds of a range of disabilities, and would cover HIV/AIDS.
Employment of People With A Disability Or Impairment
4.39 All legislation which prohibits discrimination on the basis of disability
or impairment does allow certain exemptions in respect of the cost or
extent of special services or accommodation in the workplace that would
be required. On these grounds it would be possible to exclude from employment
anyone whose status required adaptation or services which it was not reasonable
to expect an employer to provide.
Associates and Family
4.40 Most legislation which provides protection to people based on sexuality
or gender status also provides some protection to the associates and family
of people who are non-heterosexual or transgender. These provisions are
similar to those available in other anti-discrimination legislation which
covers the family and/or associates of a person with the relevant attributes.
4.41The benefits of these provisions are that they can provide a remedy
to people who are discriminated against because they have an association
with an individual. This enables action to be taken by a parent or guardian
in respect of any under age person or a person who may have a disability
or impairment affecting their capacity to take such action. It also allows
those who have been affected by the actual or presumed standing of an
associate or family member to take action.
4.42However, there can also be disadvantages depending on the structure
of the relevant legislation. For example, a wide definition of 'relative'
may mean that a fairly broad exemption in respect of accommodation or
employment is available (thus excluding more people from access to some
forms of accommodation). However, if the same definition of family or
relative is retained in all parts of the legislation, a wider range of
people may claim to have been affected by discrimination in an area.
4.43 A further benefit of some legislation - primarily that of the ACT
- is that the concept of partner or relationship is broad, allowing for
coverage of same sex relationships and other partnerships. However, there
is no necessary express prohibition of discrimination against people in
these relationships, but this may not be necessary given the very wide
anti-discrimination legislation in the ACT.
Family
4.44 In the ACT Discrimination Act 1991, the relevant terms are de facto
spouse; near relative; and relative. A de facto spouse is a person of
the opposite sex, thus limiting the operation of discrimination in respect
of marital status to persons of opposite sexes. A near relative is a spouse,
de facto spouse, a parent, child, grandparent, grandchild, brother or
sister. A ' relative' is a person related by blood, marriage, affinity
or adoption and a spouse or de facto spouse of any of these. Affinity
is not defined, but could be read broadly given that usual categories
of relative are listed separately. The NSW Anti Discrimination Act 1977
includes both 'relative' and 'near relative' which include the same categories
of persons as the ACT legislation.
4.45 The South Australian Equal Opportunity Act 1984 refers to near relatives
(spouse, parent, child, grandparent, grandchild, brother and sister) but
not to 'relative'. The legislation also refers to 'spouse' but does not
define this except to say that a putative spouse is included. The Northern
Territory Anti Discrimination Act 1992 refers to de facto spouse, spouse,
parent and parenthood, as well as 'near relative' (comprising the same
categories, except spouse, as the South Australian Equal Opportunity Act),
but not 'relative'.
4.46 The Victorian Equal Opportunity Act 1995 refers to de facto spouse
(opposite sex), parent and 'relative'. The term 'relative' includes a
wide range of people including those who in other states would be in 'near
relative' categories, and their spouses, de facto or otherwise.
4.47 The Queensland Anti Discrimination Act 1991 refers to de facto spouse,
parent, and parental status. The term 'relation' is comprehensive in coverage:
'...relation to the person by blood, marriage, affinity or adoption,
and includes a person who is wholly or mainly dependent on, or is a
member of the household of, the first person.' [52]
4.48 The ACT Family Provision Act 1969 as amended refers to 'domestic
partner' and 'domestic relationship', and includes as a 'spouse' an 'eligible
partner', thus recognising same sex relationships on certain conditions
and the eligibility of members of those relationships to various benefits.
The ACT Administration and Probate Act as amended also accepts an 'eligible
partner' as a 'spouse', with similar acceptance of same sex relationships.
The ACT Domestic Relationships Act 1994 clearly includes same sex relationships
and relationships between people of different households, and children
within these relationships.
4.49 The effect of these provisions is extensive. In terms of accommodation,
the ACT exempts accommodation to be used by the individual or near relatives,
which is a smaller category of persons than in other states - thus, the
provision actually limits the exemption (Section 26). There is no exemption
in respect of family based employment or small businesses employing family
members as well as others, although in theory it would be possible for
a person to discriminate against a person's sexuality through using the
impairment provisions of Section 49. Employment within a person's home
is exempt from any provision.
4.50 In New South Wales, employment in a person's home is exempt; an
exemption in relation to accommodation is available only in respect of
that accommodation being also used by the person or a 'near relative'
(Section 38N(3), transgender, and Section 49 ZQ(3), homosexuality). There
is an exemption in respect of small business (see Section 38C(3) in respect
of transgender persons and Section 49ZH(3) in respect of homosexuals).
Obtaining an exemption in employment with respect to disability relating
to HIV/AIDS would be difficult since the exemptions relating to employment
of people on disability grounds are more stringent than in other States.
4.51 Although the South Australian Act refers to 'near' relatives in
terms of exemptions, the broad nature of this category ensures that the
exemption is equally broad (Section 40(3)). Employment within a person's
home is exempt (Section 34(1)), but although there is no specific reference
to small business or family based business exemptions, South Australia
does allow discrimination in respect of some partnerships. [53]
In the Northern Territory, there is an exemption in respect of employment
in a person's home (Section 35(2)), and the exemption in respect of accommodation
is as broad as that in the South Australian legislation.
4.52 In both the Victorian and Queensland legislation employment in a
person's home is exempt (Victoria, Section 16 and Queensland Sections
26 and 27). Victoria, however, has special exemptions also for family
employment and small businesses which can exclude people from employment
.
4.53 Section 20 of the Victorian legislation states that 'An employer
may limit the offering of employment, in a business carried on by him
or her, to people who are his or her relatives.' Section 21 of the legislation
gives an exemption in respect of small business which is defined as being
no more than five people on a full-time basis, including those to whom
employment is offered, but not including relatives. The broad definition
of relative in Victoria means that these exemptions are also broad, as
is the exemption for shared accommodation (Section 54). Victorian legislation
also allows discrimination in respect of partnerships of under five persons
(Section 32). Other exemptions in relation to partnerships, including
'reasonable and genuine requirements' of partnership may extend discrimination
on other than 'family' grounds. [54]
4.54 In Queensland it is also possible to discriminate in respect of
partnerships of under six people (Sections 16-18). In the Queensland legislation
there is a broad definition of relation, but no definition of 'near relative'.
However, 'near relative' is the term used in the accommodation exemption
(Section 87), which may cause some problems in this field.
4.55 One of the most common complaints made by witnesses to the inquiry
was their exclusion from various important stages of life because of the
limited provisions of the law in respect of family relationships:
'The consistent theme in current legislation that discriminates against
persons in same-sex relationships is one of interpretation of legislative
definitions. The main qualifier to the inclusion of and legitimacy of
persons in same-sex relationships is the use of 'spouse' and
'relative'. These definitions can either overtly or inadvertently
discriminate against same-sex couples. [55]
4.56 The coverage offered by the term 'affinity' is not specified in
any of the legislation which refers to association by affinity. [56]
In most cases mentioned by witnesses, the established role of family and
relatives in various situations took precedence, and partners in same
sex relationships were excluded. This situation could also occur in States
where the definition of 'relative' was sufficiently flexible to include
same sex partners. [57]
4.57 The areas of exclusion included:
- advice of an accident or emergency concerning a partner;
- decisions concerning health care;
- autopsies;
- funeral arrangements;
- compensation payable in respect of a crime or accident.
4.58 The status of individuals in respect of the above matters is based
on assumptions about their standing in relation to the relevant individual.
All relationships have been assumed to exist through blood or marriage,
and legislation reflects this. The limited status of others - such as
same sex partners, or people in a range of different household arrangements
- results from the law's inability to recognise relationships outside
these grounds and the fact that it has not allowed 'marriage' to certain
groups. Although de facto heterosexual partners now have an established
legal status in respect of the above issues, this is not invariably the
case for same sex partners. Where there is no legal support for them -
through being included as a 'relative', for example - their status depends
on the attitude of the recognised family. In some instances - and this
is an area for state legislation to clarify - organisations such as police
and hospitals may still maintain a traditional understanding of 'next
of kin' or 'relative', regardless of legislation:
'Intensive Care Units allow next of kin to visit. If your partner's
family arrive and don't wish you to visit they can prevent you being
admitted. As next of kin are always notified first if someone is involved
in an accident or becomes seriously ill, there is every possibility
that you may not be notified at all.' [58]
4.59 Although the ACT legislation on domestic relationships allows for
a wide range of such arrangements, it does not make any specific reference
to the status of people within such relationships regarding other matters.
No legislation in force in any other jurisdiction addresses such issues.
The ACT Administration and Probate Act as amended does address the issue
of intestacy, and makes provision for partners, including same sex partners,
as well as for legal spouses.
4.60 One of the suggestions made to address this problem was that legislation
be reviewed to make various terms gender neutral or more comprehensive:
- a determination be made that all instances of 'spouse' be interpreted
as including individuals in defacto relationships regardless of their
gender....
- a determination be made that all instances of the terms 'next of
kin', 'relative' or 'near relative' have the same implications
for a 'spouse' of the same gender as currently exists for those of an
opposite gender.' [59]
4.61 As far as Commonwealth legislation is concerned, this could be done
as part of the legislative review process. [60]
Some states are already undertaking reviews of their legislation, but
the extent of review will depend on the nature of the anti discrimination
legislation in place; this may mean that legislation does not extend benefits
to some individuals or groups.
4.62 Clause 107 of the Sexuality Discrimination Bill 1995 requires Commonwealth
legislation to reflect the status of same-sex couples as de-facto heterosexual
couples. However, as noted by many witnesses, this will not provide access
to a range of services for same sex couples. Furthermore, unless a broader
definition of 'associate' is accepted, or specific amendments made to
cover transgender relationships, the protection for transgendered persons
will also be limited. This matter has been addressed by the Committee
at Chapter 6. [61]
4.63 The ACT legislation provides a range of protection for people in
same sex relationships and in other relationships. Queensland's definition
of relative is sufficiently broad to include a same sex relationship,
although it is not known if this was intended and the Western Australian
legislation also has a wide definition. The New South Wales Anti Discrimination
Act definition of 'associate' could include a same-sex relationship. [62]
4.64 However, no State or Territory provides in its anti-discrimination
legislation any specific protection in respect of property and other arrangements
for members of a same sex relationship and any children. The protection
that is available would be in respect of the sexuality or transgender
status of the persons, and discrimination experienced on this ground.
4.65 Nonetheless, each state may have sufficient flexibility within other
legislation to provide some coverage for same sex couples. In New South
Wales, for example, the laws relating to family provision, especially
in respect of members of households, allow same sex couples to claim membership
of a household, although some form of dependency must also be established.
[63]
4.66 No legislation includes same sex couples under 'marital status',
thus limiting some areas of discrimination protection. [64]
Associates
4.67 An associate is not defined in the ACT Discrimination Act 1991,
although there is reference to a carer; discrimination on the grounds
of 'association' 'whether as a relative or otherwise', is proscribed (Clause
7). The term associate is not used in the South Australian Equal Opportunity
Act 1984, and no protection is offered to persons who are associates of
a person with specific attributes. The Northern Territory Anti-Discrimination
Act includes among attributes 'association with a person who has, or is
believed to have, an attribute referred to' (19(1)). The NSW Anti Discrimination
Act 1977 refers to associates in broad terms as:
'...any person with whom the person associates, whether socially or
in business or commerce, or otherwise; and
any person who is wholly or mainly dependent on, or a member of the
household of, the person.' [65]
4.68 The Victorian Equal Opportunity Act 1995 does not refer to associates,
but does include 'carer' in its definitions and lists 'status as a parent
or carer' in attributes. It also includes in attributes 'personal association,
(whether as a relative or otherwise), with a person who is identified
by reference to any of the above attributes.' The Queensland Anti Discrimination
Act does not refer to 'carer' but does state that 'association with, or
relation to, a person' with an attribute is deemed to be protected (7(1)).
4.69 All States except South Australia provide protection to people on
the grounds of their being an associate of a person. The New South Wales
legislation's definition of associate includes a category of person (member
of household of, or dependent on, a person) the same as the ACT definition
of a 'relative'. In New South Wales legislation, social relationships
are specifically included whereas in other legislation social relationships
can be inferred from the term ' personal' association.
4.70 Personal or social association may in fact cover a wide range of
relationships, thus providing protection to a number of people who are
not relatives but may be closely involved with a person. Business associates
are covered by all legislation, except South Australia, and South Australia
specifically allows discrimination on the basis of sexuality (including
transgender status) in respect of partnerships of less than six persons.
[66] Other States and Territories do not refer
to 'sexuality' or gender status in providing exemptions in respect of
partnerships.
4.71 In the Sexuality Discrimination Bill 1995, the definition of 'associate'
is somewhat limited. It only provides protection to persons based on their
dependence on others. Evidence provided to the Committee suggested that
in some relationships financial dependence or interdependence may be less
common that emotional dependence or interdependence. Membership of the
same household may not adequately define the relationship of other people
or explicitly accommodate the situation of those who have more than one
significant other. This situation could be covered by the term 'relative'
which means 'another person to whom the person is related by blood, marriage,
affinity or adoption'; however, the term 'affinity' is not defined and
hence may not explicitly cover a number of persons who may nonetheless
be directly affected by discriminatory behaviour.
4.72 If the intention of the bill is to provide protection to persons
who are discriminated against because they are a partner of a person or
in some way related to the person or the partner, this intention should
be clearly stated.
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;
4.73 The objective of the change is to ensure that persons who are partners
(same sex or otherwise) are able to seek the protection of the legislation
with respect to harassment, vilification etc., regardless of the financial
relationship between them - see, for example, sub clause 6(1) which refers
to the sexuality of the 'aggrieved person, or of a relative or associate
of the aggrieved person'. If partners are not deemed to be either an associate
or a relative (by affinity or through being a 'spouse'), then there is
no basis for them to take action in respect of discrimination. Similarly,
others, such as the children of partners, should also have this protection.
4.74 An alternative would be to define the meaning of 'affinity' in the
term 'relative' or to include partners as 'spouses'. This latter alternative
will come into effect in respect of Commonwealth legislation (see Clause
107). However, as the intention of the legislation is to provide coverage
in a much wider area the change to Clause 5 is also required.
Perceptions of Sexuality and Gender Status
4.75 Some current anti-discrimination legislation provides protection
to people, and, in some cases, the associates or family of people, who
are discriminated against through being believed to be non-heterosexual
or transgender. The extent of coverage for transgender people depends
on whether transgender status is recognised as an attribute in legislation;
thus, there is no protection for transgender people in the Queensland
and Victorian legislation.
4.76 In the ACT, the Discrimination Act 1991 refers to attributes 'that
a person is presumed to have (Section (7(2)), which would cover both sexuality
and gender status, as well as protect an associate or relative. The South
Australian Equal Opportunity Act 1984 refers to unfavourable treatment
on the basis of 'a presumed sexuality' (29(3)) which would have to cover,
at least in theory, not only sexuality but transgender people. [67]
The Northern Territory Anti Discrimination Act refers to association with
a person 'who ... is believed to have' an attribute and also states that
discrimination takes place 'if a person treats or proposes to treat another
person who has or had or believed to have or had ' an attribute (Section
20(2)).
4.77 The NSW Anti Discrimination Act 1977 makes provision for those who
are 'thought of as a transgender person' (Section 38A)'whether the person
is, or was, in fact a transgender person' and also for those who are thought
to be homosexual or whose relatives or associates are thought to be homosexual,
whether they are or not. [68] Under the provisions
relating to discrimination on the basis of disability in the NSW legislation,
there is a provision in respect of a presumed disability, a disability
occurring in the future, and a disability that is presumed to occur in
the future:
'A reference in this Part to a person's disability is a reference to
a disability:
(a) that a person has; or
(b) that a person is thought to have (whether or not the person in
fact has the disability) or
(c) that a person had in the past, or is thought to have had in the
past (whether or not the person in fact had the disability); or
(d) that a person will have in the future, or that it is thought a
person will have in the future (whether or not the person in fact will
have the disability).' [69]
4.78 The disability provisions can cover a wide range of disabilities
or assumed disabilities. Further protection is provided in NSW to people
with HIV/AIDS or those assumed to have this status, with the anti-vilification
provisions of the legislation. [70] This point
was made by the Inner City Legal Centre in reference to a case of vilification.
[71]
4.79 The Victorian Equal Opportunity Act refers to discrimination occurring
in respect of an attribute 'that a person is presumed to have', 'or to
have had it at any time' (Section 7(2)(d)), but not to a future presumed
status. The Queensland Anti Discrimination Act refers to an attribute
that a person is presumed to have or to have had (Section 8), but not
to one they may have in the future, or may be presumed to have in the
future. As Queensland and Victoria do not provide any protection to transgender
persons, except in respect of their 'lawful sexual activity', there is
no specific protection available to them in respect of presumed status.
4.80 Insofar as discrimination may occur in respect of assumed status
as well as actual status, these provisions provide a ground for action.
All six States and Territories with anti-discrimination legislation relating
to sexuality or gender status make some provision for current or past
presumed status. For Victoria and Queensland, this can only refer to sexuality
and not to gender status.
4.81 Future assumed or presumed status is most likely to refer to discrimination
in respect of assumed future disorders or ill-health resulting from sexual
activity:
'For some time I worked with one of the large Christian care organisations
here in Sydney and I heard some of my good Christian colleagues discuss[a
potential resident] and the fact that they had the understanding that
he was a homosexual and that they did not think he was a proper person
to have in that health care hostel, not particularly because he was
a homosexual, but that because he was a homosexual he would have problems
with anal retention and that they would have to change the sheets too
often.' [72]
4.82 In terms of future assumed status, only New South Wales provides
unequivocal protection and this is only in relation to disability and
not to transgender status or sexuality. This may mean it is possible to
discriminate on the ground that a person had a health problem or a particular
status that was not classified as an impairment. However, the wide definition
of impairment would probably limit the options of discriminating in this
way.
4.83 Another way in which to limit discrimination would be to consider
that all discrimination, whether relating to the present or to possible
future situations, was based on characteristics of sexuality or gender
status, and was therefore prohibited. [73]
4.84 There is little specific consideration of the extent to which associates
and family or relatives are also covered by future assumed status. In
all cases where both associates and/or family/relatives are protected,
and where future status is also protected, it is likely that coverage
will extend to associates and family/relatives in the future. However,
only New South Wales currently provides this protection and only in relation
to disability.
4.85 Some anti -discrimination legislation provides protection for a
status that one has had or is presumed to have had in the past. This was
not an issue that was discussed in any detail in submissions or verbal
evidence, although it was raised briefly in another context: the awareness
of discrimination resulting from a person changing sexuality. [74]
4.86 New South Wales provides protection in respect of past status. However,
it is not clear how far past status reflects possibly ongoing status as
well (such as bisexuality) or if people are likely to take action on the
ground of previously having been of a particular sexuality.
4.87 The Committee believes that assumed as well as actual status should
be protected especially because people may suffer severe discrimination
through being assumed to have a status or through a connection with a
person assumed to have a status, either as regards sexuality or gender.
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)).
4.88 Protection in respect of past or future status or assumed, perceived
or presumed status is provided in respect of sexuality, which is defined
in Clause 5 of the bill as including sexuality 'that presently exists,
existed in the past, or may exist in the future'. Although there was limited
evidence provided as to transgendered persons moving from one gender to
the other on a regular basis, there is no reason not to specify that past
or future status should not also be protected for transgendered persons
through an additional section being added to the Sexuality Discrimination
Bill 1995.
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'
Characteristics of a Sexuality or a Gender Status
4.89 In all anti-discrimination legislation reference is made to various
characteristics that are assumed to be a part of the qualities of distinct
categories of people. Generally, although these features are not detailed
for each individual group, they are deemed to be qualities or features
which are seen as detrimental insofar as they have been used in the past
to exclude people from access. They are variously described as 'characteristics'
or 'imputed characteristics', and are classified as part of the 'attributes'
which are proscribed grounds of action. An example of this is seen in
the ACT Discrimination Act 1991:
'A reference in this Act to an attribute.. shall be read as including
a reference to:
(a) a characteristic that persons with that attribute generally have.'
[75]
4.90 Most anti-discrimination legislation prohibits discrimination on
the basis of such characteristics, primarily on the grounds that it is
not appropriate to categorise people in this fashion even though some
people in the relevant group may have some of those characteristics.
4.91 In some legislation, however, it is possible to see some concessions
made in favour of the broader community in respect of the supposed characteristics
of non-mainstream groups. Two specific instances in the case of State
and Territory sexuality and gender legislation are discrimination in respect
of employment in services dealing with young people and children (Northern
Territory, Victoria, and Queensland) and dress and appearance (South Australia
and Victoria). [76] The first of these exemptions
appears sufficiently wide to allow discrimination against persons working
in schools and other services as well as in child care. The second exemption
is so broad that it gives employers a wide power to discriminate.
4.92 In these instances, preconceptions or stereotypes are permitted
to operate, rather than being a basis for a complaint:
'These exemptions signal a bitter irony in that the very statutes which
are meant to assist in overcoming discrimination are actually busy entrenching
it, by explicitly positing that lesbians and gays pose a threat to children.'
[77]
4.93 No legislation specifically permits a stereotype or characteristic
of transgender persons, but as transgender people are included in the
definition of sexuality in some legislation, then they are also excluded
from protection in some areas of employment. This is the case in the Northern
Territory and South Australia:
4.94 One of the main areas of discrimination for transgender people,
and to some extent, bisexual people, is that their status is not recognised
or is devalued as indeterminate. This can take the form of :
- refusing to treat the person as a person of the sex with which they
identify, or as a transgender person;
- refusing to ensure that all transgender people are treated appropriately.
Not to do this is effectively to say that all transgender people are
transgender, and are not men or women or people who wish to be seen
as men or women. Inadvertently, this flaw can occur in legislation;
[78]and
- refusing to acknowledge that bisexuality is a status rather than an
interim or imperfect situation.
4.95 One of the main features of the NSW legislation is the provision
of protection in respect of recognised transgender people not being accepted
as a member of the sex with which they identify:
'A person (the perpetrator) ... discriminates ... if ... the perpetrator:
(c) treats the aggrieved person, being a recognised transgender person,
as being of the person's former sex or requires the aggrieved person,
being a recognised trangender person, to comply with a requirement or
condition with which a substantially higher proportion of persons of
the person's former sex comply or are able to comply...' [79]
4.96 The reason for this distinction between recognised transgender people
and other transgender people is not clear, although it may be that it
is easier for formally transgendered persons to provide documentation
as to their status. The effect of the provision would be that post operative
transgender people had the right to be seen as men or women, as distinct
from being seen or treated as 'transgender' or as a person of their original
sex. [80]
4.97 The same protection does not appear to be available in the NSW legislation
to persons who are pre-operative or non-operative. In the Sexuality Discrimination
Bill 1995, there is provision for those who are 'pre-operative' but not
for those who are 'non operative'. [81] Nonetheless,
many such persons also wish to also be considered as a member of the sex
with which they identify.
4.98 One witness noted that the proposed legislation did not provide
any protection when a transgender person 'is being required to act as
if they were not transgendered':
'For instance, a male to female transsexual might be required to wear
male clothing to work. The employer would argue that this was no different
from the requirement imposed on his non-transgendered male employees.'
[82]
4.99 This issue is also a problem in terms of indirect discrimination,
[83] and the proposed Commonwealth legislation
currently has no clause relating to indirect discrimination against transgender
persons. A clause equivalent to that regarding indirect discrimination
against non-heterosexual persons (Clause 6(2) of the bill) would meet
this need. However, it is still important to take into account the differences
between transgendered persons themselves:
'...care must be taken to distinguish between the two groups of transgendered
persons people (male to female and female to male), because aggregating
them, and then talking about proportions, produces anomalous results.'
[84]
4.100 This issue is discussed further in Chapter 5 where a recommendation
concerning indirect discrimination is made. [85]
4.101 The South Australian Equal Opportunity Commissioner also noted
that the current draft of the proposed Commonwealth legislation did not
cover all issues relating to discrimination against transgender people,
only prohibiting discrimination of transgender when compared with non-transgender
persons. It does not take the next step and prohibit the discrimination
that occurs when status is not accepted:
'...the Bill does not address the central issue which is that to treat
transgender people in a non-discriminatory way means to accept them
as a member of their acquired identity rather than as a "transgender"
' [86]
4.102 In practical terms there is good reason for this gap in the Sexuality
Discrimination Bill 1995 in that it is more difficult to prove a potential
offender knew without doubt of the preference for male or female status
of a transgender person. Nonetheless, where a person meeting the definition
of a transgender has made his or her preferences known in respect of documentation,
ordinary manner of address and so forth, a refusal to accept this preference
should be seen as harassment.
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).
4.103 Evidence from representatives of the Australian Bisexual Network
provided evidence that they felt discriminated against by both heterosexuals
and homosexuals, and were often not accepted by any community:
'The dominant ideology in society is that you are straight or you are
gay ... Bisexuals are not gays and lesbians, nor are they transgendered
persons. The ideology is that bisexuals are gay or lesbian or that they
are experimenting heterosexuals. That idea is also prevalent in the
gay and lesbian community, that bisexual people are ones that just have
not come out as gay or lesbian or as homosexual. While a small percentage
may be going through a transition from heterosexual through bisexual
to homosexual, a vast majority are truly bisexual in orientation and
also in personal identity.' [87]
4.104 Insofar as bisexuals believed they were discriminated against by
both heterosexual and homosexual groups, anti-discrimination legislation
may need to make more explicit statements on the importance of status
recognition for bisexual people.
4.105 The exact nature in which this can be done is not clear insofar
as much of the discrimination or harassment may occur in a setting not
easily regulated. Recommendation 2 of Chapter 1 has suggested that all
organisations provide access to bisexuals who choose to use health, legal
and other services. Recommendation 1 of Chapter 2 refers to 'harassment'
and can be expanded to include harassment through refusal to accept bisexual
status.
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.
4.106 The Sexuality Discrimination Bill 1995 includes clauses relating
to perceptions of sexuality and transgender status, including that of
associates and relatives (Clauses 6(1) and 6(3)). [88]
However, as noted, it does not cover all issues relating to discrimination
against transgender people. These issues are considered in further detail
in Chapter 5.
Areas Covered by State and Territory Legislation
4.107 In theory State and Territory powers in terms of human rights legislation
are extensive, and can cover a range of subjects. The States and Territories
that have legislation to prevent discrimination on the basis of sexuality
or gender status extend protection to areas such as employment; training,
education; insurance and superannuation; access to goods and services,
[89]State and Territory government and local
government services and programs including transport services, and access
to buildings and vehicles. Recognition of partnerships and family relationships
can come under State control, as do probate and intestacy arrangements;
determination of the coverage of 'next of kin'; and, possibly, the provision
of gender-appropriate services such as accommodation in prisons. States
and Territories can develop special measures programs or positive discrimination/affirmative
action services; overrule existing discrimination in their own legislation;
and create exemptions and exceptions. They may forbid discriminatory measures
by trade unions, bodies entitled to assess or grant qualifications, clubs
and organisations. They are responsible for the operation of a wide range
of public sector services including medical services, education services
and the police.
4.108 State and Territory legislation cannot affect Commonwealth employees
relative to workplace issues; Commonwealth goods and services, Commonwealth
programs including payment of benefits such as social security, veterans
affairs, Medicare payments, or superannuation and insurance operated for
Commonwealth employees or which is primarily of an inter-State nature.
[90] Commonwealth legislation, based on the
external affairs power, can override State and Territory legislation,
legislating in areas where the domestic powers of the Constitution would
ordinarily not allow Commonwealth jurisdiction. The Commonwealth may also
choose to exempt its own laws or State and Territory laws from the effects
of anti-discrimination legislation generally, or for a period of time.
4.109 Essentially, there are few areas where States and Territories cannot
act. Many of the day to day issues of discrimination occur in arenas which
are primarily under State and Territory government control, a point made
in many submissions. [91] Employment and access
to certain goods and services are obviously crucial issues, and these
will be considered in some detail.
Employment
4.110 In all States and Territories with anti-discrimination legislation
there is a prohibition of discrimination in employment and related matters
such as granting of qualifications. Employment covers public and private
sector employment within the control of State government, including small
business, family business and small corporations as well as large organisations;
and education services, public, private and religious.
4.111 However, this prohibition is modified by various exemptions of
a general or specific nature. All States and Territories had exemptions
regarding the employment of people in partnerships, although sexuality
was only specifically mentioned in the South Australian legislation, with
size of a partnership being the relevant factor in other legislation (this
is in keeping with such provisions in respect of discrimination on the
basis of sex, disability and so on, and is not peculiar to sexuality or
gender status).
4.112 Three states specifically limit the opportunities of people working
in child care, or with young people, as well as in education services,
and these exemptions appear specifically directed to people of non-heterosexual
status. Of these limitations, the most comprehensive were those available
in Victoria.
4.113 All states allow exemptions in relation to the training or employment
of priests or ministers or equivalents. However, exemptions which allow
people seeking to teach in religious schools to be discriminated against
on the basis of their sexuality (among other factors) would extend restrictions
on employment opportunities somewhat more widely, for reasons which are
not directly related to sexuality or gender status:
'Someone's sexuality does not impact on their ability to teach science
or grammar or any other field. If there is a religious instruction component
in the classes, then the question should be whether or not the teacher
preaches the required doctrine, not the very fact of their sexuality.'
[92]
4.114 Employment opportunities were also seen to be limited not so much
through exemptions per se as through the fact that people were deprived
of role models in various areas and learned that they might be excluded
from employment in specific fields. [93]
4.115 The extent to which discrimination which affected a person's own
business (as distinct from his employment in another business) was referred
to by one witness. In this case, a number of parties, including the local
government, appeared to have discriminated against the individual. [94]
The availability of remedies in this instance was not apparent, since
vilification provisions in respect of homosexuality were not available
in the Queensland legislation.
Accommodation
4.116 Accommodation also covers a very broad category of residential
services, including hotels, motels, aged care services, young people's
services, refuges, accommodation for the homeless, boarding houses, apartments,
flats, houses, community based services for a range of people including
those with disabilities, halfway houses, services run by church and charity
groups and by voluntary organisations of all types, mobile homes, and
caravans. Some of this accommodation can be classified as private (houses,
apartments, boarding houses), some as public especially hotels and motels,
and some as available to particular categories of people, such as the
homeless or the aged. Most accommodation is subject to various regulations
and is under the control of State and local governments.
4.117 Most anti-discrimination legislation necessarily provides exemptions
regarding accommodation, usually so that special purposes and needs can
be met [95] or so that individual choices in
respect of shared accommodation can be met. [96]
4.118 There was some concern expressed in relation to access to accommodation
and this was on a number of grounds. The first was the refusal of access
to accommodation [97]and this included some
opposition to exclusion of heterosexuals from 'private' accommodation.
4.119 There was also some concern relating to various definitions of
accommodation, with a belief that some definitions would be so broad that
people might be unable to obtain any form of accommodation such as a room
at a hotel. However, distinctions are clearly made in all legislation
between private and public accommodation, and between accommodation services
which may seek an exemption on the grounds of size, number of places available,
and the cost of providing a service for persons of the opposite gender
to those usually accommodated. Some small hotels, motels, boarding houses
and holiday type accommodation may well be exempt, depending on size and
on the number of family members residing on the premises. However, it
is unlikely that most such commercial accommodation would fall into this
category.
4.120 Private accommodation for rent such as houses and flats are not
exempt from the legislation in most cases unless the accommodation is
fairly small and the owner/individual or family members will be on the
premises. [98] In respect of the sale of such
accommodation, the usual provisions apply. One witness referred to discrimination
in respect of private accommodation already secured. [99]
Such actions are contrary to legislation unless any of the above exemptions
apply, or unless some agreement was made regarding conditions of tenancy.
Goods and Services
4.121 Access to various goods and services and to insurance and superannuation
were also matters raised by a number of submissions. [100]
Many of these goods and services are matters which are under State jurisdiction,
and this was noted by many witnesses. [101]
For this reason, a number of submissions or oral evidence stated the importance
of any Commonwealth legislation having the power to override State laws
which allowed discrimination in service provision. [102]
4.122 As noted in Chapter 2, an extensive range of goods and services
is available to the mainstream community, and a number of groups believed
that their access to such services was compromised, or that the services
which were available were inappropriate, or both. [103]
Hence, there was a demand both for increased access and for the structuring
of services to meet special needs, an issue which is also brought out
in the discussion on the need for special services. [104]
4.123 Those services most complained of included education, police, and
medical services. [105] In some cases there
had been a considerable change for the better in attitude, often as a
result of groups working together. In addition, various services such
a medical services had been developed by the communities themselves, generally
with little if any funding from governments in order to ensure appropriate
services were available. [106] However, sexuality
specific services can only be provided in limited areas such as medical
and legal services, and only to relatively small numbers of people. [107]
Although these specialist services may be preferred by community groups,
it will not always be possible to fund them and generic services may have
to be used instead.
4.124 In some instances it was thought that the very approach to service
provision reflected discriminatory attitudes:
'We believe the medicalisation of transgender needs to be examined;
proper counselling and not just assessment as to whether or not a person
is transgendered or not is very important; and that educating patients
and so enabling them to make informed choice [is] far more desirable.'
[108]
4.125 Discrimination in respect of other goods and services of a general
nature is generally prohibited, allowing people to access clubs, [109]
sporting organisations, [110] and membership
of local government administration [111] -
insofar as the latter may also constitute employment, this is an important
protection. In its Discrimination Act 1991 the Australian Capital Territory
prevents discrimination in relation to access to premises, and this may
affect both enjoyment of goods and services and employment.
Clubs and Societies
4.126 Access to clubs and organisations is a complex area. As noted below,
there is a general interest in increasing access to organisations which
provide general services, such as cultural, sporting, and entertainment
services.
4.127 However, there is also a recognition that the actual purpose or
objective of an organisation can be to maintain a culture or way of life
which may be perceived as being threatened by having a membership which
has little interest in or capacity to contribute to the maintenance of
the objectives of the organisation. For this reason, as well as for a
more specific interest in developing a level playing field or 'creating'
equality, access to some organisations may be limited:
'...the Board is concerned that the fact that the [Sexuality Discrimination]
Bill covers heterosexuality discrimination as well as homosexuality
and bisexuality discrimination should not lead to an assumption that
there is currently a level playing field ... a high level of discrimination
that continues to be suffered by homosexual and bisexual persons means
that it should not be unlawful to form a club or incorporated association
which has as its principal object the provision of benefits for persons
who are homosexual or bisexual ... Although the actions of such clubs
... may be covered by "special measures" provisions, the Board
is of the view that it is preferable to specifically exempt them from
the operation of the discrimination provisions.' [112]
4.128 Safety and security and a sense of belonging were identified as
the main reason why non heterosexuals and transgendered persons wished
to maintain social and other clubs. [113]
However, there was also a belief that sexuality and gender specific organisations
should be allowed to provide appropriate and informed services in other
areas such a health, counselling and legal services. [114]
4.129 In the Sexuality Discrimination Bill 1995 a club is defined as:
Clause 5,
'club means an association (whether incorporated or unincorporated)
of at least 30 people associated together for social, literary, cultural,
political, sporting, athletic or other lawful purposes that:
(a) provides and maintains its facilities, in whole or in part, from
the funds of the association; and
(b) sells or supplies liquor for consumption on its premises'
4.130 Clubs and incorporated associations are forbidden to exclude people
on grounds of sexuality or gender status, [115]
which would both increase access to mainstream organisations and also
to organisations which may currently be gender-specific or sexuality-specific.
However, organisations which are neither incorporated nor defined as a
'club' are not affected by such provisions. Further, the special measures
provision at Clause 27 may enable those bodies which are defined as incorporated
bodies or as clubs, to seek an exemption.
4.131 At Recommendation 2 of Chapter 1, it is recommended that all organisations
receiving Commonwealth funding provide access to bisexual and transgender
people. This recommendation has been made to improve access to appropriate
services for minority groups who may not receive sufficient funding to
operate such services themselves. In general the Committee believes that
services and organisations funded by the Commonwealth should not exclude
anyone.
Sport
4.132 Access to sporting organisations is complex in that access to membership
of an organisation may not necessarily enable an individual to participate
in sport or competitive sport. State legislation relating to sexuality
does not expressly prohibit discrimination on the basis of sexuality as
far as sport is concerned; but it is assumed that sport and sporting organisations
are included in the range of goods and services which must be available
to all.
4.133 The main area of potential problem lies in access by people of
transgender status to competitive sport. [116]
Most legislation that deals with this issue makes a distinction between
sport and competitive sport, as well as between belonging to a sporting
club and playing sport. The NSW legislation does not specifically exclude
recognised transgender people from playing competitive sport as a member
of the sex with which they identify; however, a specific exclusion prohibits
other transgender people from competing on the same terms. [117]
4.134 Most prohibitions that do exist in the area of sport do not refer
specifically to gender but rather to physical attributes. Thus, while
they may have been drafted to acknowledge differences between men and
women they can be used to exclude transgender people from playing in teams
or competing against people of the gender with which they identify.
4.135 The extent to which sport is a major concern varied according to
witnesses. The Anti Discrimination Board of New South Wales believed that
sport was of limited concern to transgender people, [118]
but this was challenged by the Women in Sport Foundation. The Foundation
believed that the proposed legislation would effectively destroy female
sport, if there was no exemption. Transgender people would be allowed
to compete and it would only be when they reached international competition
that they would be excluded, thus disadvantaging genuine females who might
otherwise have been chosen to compete at this level. [119]
This suggested that a larger number of transgender or transexual people
might be involved in sporting activities. Another witness suggested that
those who were not genuinely transgender (that is, who did not live on
a permanent basis as a person of the biological sex with which they identified)
could be prosecuted for fraud if they entered sport on a 'temporary' basis
for gain. [120]
4.136 The author of the Sexuality Discrimination Bill 1995 saw no reason
why an individual organisation could not exclude a (male to female) transgender
person if they believed that person was still assisted by biology ('still
has physical characteristics which to a large extent belong to their former
gender'). [121] The South Australian Equal
Opportunity Commissioner believed that given the complexity of the issue,
there may need to be 'some guidance in the Bill as to the point at which
a transgender person should be treated as a member of their acquired identity.'
[122]
4.137 In the Sexuality Discrimination Bill 1995 the intention appears
to have been to ensure that people could not be excluded from playing
sport as a person of a specific gender. A male to female transgender person
presumably would wish to play sport as a woman, and a female to male as
a man. The current version of the legislation prohibits a transgender
person from being discriminated against because of being transgender.
Insurance and Superannuation
4.138 Most anti-discrimination legislation seeks to address the issue
of discriminatory treatment in the provision of superannuation and insurance.
However, all States and Territories do have exemptions relating to both
these services. Queensland, for example, allows discrimination on the
basis of sex or marital status in relation to superannuation if such discrimination
is allowed under the Commonwealth Sex Discrimination Act 1984 (SDA) (Section
59), or on the basis of age and impairment in complying with the Commonwealth
superannuation legislation (Section 64), or any other Commonwealth Act
(Section 65). In respect of superannuation, it is also possible to discriminate
on the basis of impairment (Section 61) and this may include people of
HIV/AIDS status. The only limits on such discrimination relate to use
of appropriate data or reasonable data/information. Similar restrictions
also affect insurance (Sections 73-75).
4.139 South Australia generally prohibits discrimination in the area
of superannuation unless this is related to actuarial or statistical data.
However, it does allow specific discrimination in favour of legal spouses
relative to de facto spouses (Section 44). Discrimination based on sex
is also allowed in insurance (Section 49), and this may affect people
of transgender status.
4.140 At Section 43 of the Victorian Equal Opportunity Act 1995, discrimination
is allowed in respect of sex and disability, under the provisions of the
SDA and the DDA, actuarial data or reasonable data in relation to the
provision of insurance. With respect to superannuation, discrimination
is allowed on the ground of sex, marital status and disability if it is
allowed under Commonwealth legislation (see Section 73(2)).
4.141In its general exemptions, the ACT legislation allows discrimination
in insurance (Section 28) and superannuation (Section 29) based on appropriate
information. In respect of superannuation, discrimination is allowed in
order to comply with the provisions of Commonwealth legislation.
4.142 In New South Wales legislation discrimination is allowed in the
provision of superannuation and insurance to transgender people. Section
38Q allows a transgender person to be treated as a person of their original
sex in respect of superannuation, even if they are a recognised transgender
person.
4.143 In the NSW legislation there are no specific statements about homosexual
persons in respect of either superannuation or insurance; these areas
may be covered by the general goods and services provision (Section 49ZP)
prohibiting discrimination. Any areas of exemption may occur only in the
general exemptions (Section 54, Acts Done Under Statutory Authority) or
under discrimination based on sex (Sections 36 and 37). Discrimination
in insurance and superannuation is allowed in respect of people with a
disability if the grounds are actuarial and statistical or other reasonable
data (Section 49Q).
4.144 There is no provision prohibiting discrimination in these areas
in respect of bisexual persons.
4.145 The Northern Territory allows discrimination in respect of insurance
and superannuation if the discrimination is based on actuarial or statistical
data or is necessary to comply with provisions of Commonwealth legislation.
4.146 Although it may appear that some States prohibit discrimination,
these prohibitions are restricted either in order to comply with State
legislation or with Commonwealth legislation. In respect of Commonwealth
legislation, this ranges from the Sex Discrimination Act 1984 and the
Disability Discrimination Act 1992, to the various superannuation acts.
Certain of these effectively limit the power of trustees to make payments,
or to make payments to attract the maximum tax benefit. In many instances,
therefore, the prohibition of discrimination would actually have very
little effect, and changes are required in the Commonwealth arena. This
is discussed further in Chapter 6. [123]
4.147 A more detailed study of each State's legislation in relation to
State controlled superannuation schemes (that is, those subject to State
regulation) would be required to determine if any benefits have been provided
through State anti-discrimination legislation, or whether people are excluded
on the basis of their sexuality or gender status from various schemes.
4.148 At first glance, however, the possibility of sexuality based discrimination
in insurance and superannuation is limited, if the issue of access to
schemes is considered. The main areas of discrimination in access are
likely to occur in relation to HIV/AIDS, and would be less direct. The
payment of benefits in State regulated legislation may be affected by
principles which exclude people on the basis of sexuality, or marital
or relationship status.
4.149 Although there is little specific comment on the possible effects
of discrimination based on gender in State legislation, it is likely that
such discrimination would have an effect on transgender people including
transsexuals. The NSW legislation, which is the only one to specifically
address the issue of superannuation for transgendered persons, allows
discrimination which relates to the original sex of a person, given that
actuarial data do note some substantial differences in life expectancy
generally on the basis of sex. However, other factors would also be taken
into account, including lifestyle.
4.150 This does lead to some difficulty in treating people in a consistent
fashion. Aside from the problems of legislation which consider gender
to be a sexuality issue, allowing distinctions based on biology in, say,
sport and superannuation, would affect the right of a person to be considered
as a member of the sex with which they identify. The Gender Council of
WA stated that scientific data, including actuarial and statistical data
were often incorrect or incorrectly used:
'[There is] a blanket refusal to accept reassigned sex for the purposes
of sport, although there is no evidence that male DNA in itself conveys
any sporting advantage ... Another such error ... is that persons reassigned
as female may be considered to be male for purposes of superannuation.
Since such persons lack major sources of male cancer and maintain a
female hormonal regime their actuarial data would clearly not model
that of a male. Since they also lack certain female cancer sites they
may well be shown to be healthier than normal females once the stress
inducing persecution ends. In the interim the onus should be on the
insurance companies to treat this tiny group on an individual basis...'
[124]
4.151 States that do discriminate or have not granted access to superannuation
benefits for same sex couples, are likely to refer to Commonwealth legislation
which currently specifically prohibits payments to other than approved
recipients [125] and defines 'approved' in
limited terms which relate to dependency. Dependency may also have to
be demonstrated in more detail by same sex couples than would be the case
for heterosexual couples, de facto or married. [126]
4.152 In jurisdictions where discrimination in respect of insurance and
superannuation is prohibited a distinction is to be made between eligibility
to join a scheme without unreasonable restrictions, and access to the
benefits of a scheme. It is still possible to make rules and regulations
concerning membership of insurance and superannuation schemes, and the
terms and conditions on which one joins, but these terms and conditions
must be applied on an individual basis and supported by actuarial material.
General assumptions (such as that a gay man must be HIV positive) cannot
be applied unless the individual's lifestyle supports this:
'It is legitimate to discriminate on the basis of activity; it is not
legitimate to discriminate on the basis of sexuality. There is nothing
wrong with having a requirement in exactly the same way as it is legitimate
to discriminate against smokers on the basis that statistically and
actuarially they constitute a higher risk...If you want to have a statistical
or actuarial exclusion which seeks, for example in relation to HIV,
to ask the questions as to whether people engage in certain types of
sexual behaviour which puts them at greater risk and to statistically
and actuarially use the activity as the basis of a discriminatory arrangement,
then the law recognises that, but the assumption that all people who
fit into a particular category behave in a particular way which has
a particular risk factor is an act of blatant discrimination.' [127]
4.153 Such statistical data are less likely to be applied in respect
to payments of benefits. Thus, while members of a same sex couple or a
single person may be obliged to join a superannuation scheme and obliged
to pay a certain rate of superannuation, they are deprived of the benefits
of some schemes on the grounds that they have no real dependants. The
favourable taxation rates available to heterosexual couples, allowing
the surviving member of a heterosexual couple to receive payments at a
lower tax rate, are not available to others.
4.154 This issue has been dealt with by others, including the Senate
Select Committee on Superannuation in its report Super and Broken Work
Patterns. [128] However, there have been few
developments allowing for same sex couples or single people to benefit
from their contributions, even though the former at least may be able
to demonstrate some level of dependency. A Recommendation relating to
the recommendations of the Select Committee's report is in Chapter 6.
[129]
4.155 The Sexuality Discrimination Bill 1995 allows discrimination in
respect of superannuation and insurance on the grounds of sexuality or
transgender status, if the discrimination is based on actuarial data and
is reasonable (Clause 30). The Anti Discrimination Board of New South
Wales recommended that this clause be removed. [130]
Another witness believed that people affected by such information should
also have access to it. [131]
4.156 The Committee believes that the exemptions in the Sexuality Discrimination
Bill 1995 allowing discrimination in respect of superannuation and insurance
are ambiguous enough to allow an insurance or superannuation organisation
to utilise material which may not be relevant. For example, there may
be little information available on the life expectancy of transsexuals,
or on the different life expectancies of male to female and female to
male transsexuals. Similarly, there may be little information on the extent
to which transsexuals and other transgendered persons are affected by
different illnesses, some of which may relate to their birth gender. Consequently,
the Committee has recommended changes which reflect these concerns.
4.157
Recommendation 7
That Clause 30 (1) and 30(2) of the Sexuality Discrimination Bill
1995 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.'
Documents and Information
4.157 A number of witnesses indicated that they had difficulty in providing
information of a personal nature and some believed that the requirement
to do so was unnecessary and in fact discriminatory, especially for a
range of documents. [132]
'When a non-transexual person is asked their gender, they are not being
asked to reveal more than that single fact. On the other hand, when
the transexual is asked, they are being required to reveal considerable
information about their history and their current life style.' [133]
4.158 Most identification through documentation comes under State or
Territory control (birth certificates, registration of marriages, drivers
licences); and the remainder is primarily private sector (e.g credit cards,
insurance, superannuation). The extent to which the Commonwealth is able
to monitor such documentation is unclear except through the corporations
power. State based documentation, which is regulated through State legislation
unaffected by the Sexuality Discrimination Bill 1995, would need to be
the subject of review by State authorities to determine if gender was
essential information.
4.159 Another concern related more to the problems that people had in
defining their needs or in having to make statements about a relationship
that may be taken for granted in respect of other relationships, rather
than to problems arising from denial of access to a service:
'Perhaps the most insidious and pervasive discrimination exists in
the area of goods and services provision. It is unimaginable for most
people, that they should have to reveal their domestic relationship
to a complete stranger, in the course of obtaining a service for which
they are paying.' [134]
4.160 However, this issue is one that depends on education and people
feeling less concerned about identifying such needs. Over a period of
time such practices may become more common and therefore produce fewer
problems.
4.161 The issue of documentation is considered further in Chapter 6.
[135]
Improving service provision
4.162 In order to improve access to those services available to the
rest of the community, substantial changes would have to be implemented
by service providers and by relevant government authorities. Such changes
include:
- extending a range of benefits to all people in the same circumstances;
- ensuring services are provided on the same terms and conditions as
for others - that is, provided in a non-discriminatory way; and
- identifying problem areas (such as gender status) in the provision
of services, for example, tickets issued in a man's name for a male
to female transgender person.
4.163 The heterosexual and family oriented structure of many services,
referred to above, is generally obscured. However, as a result of complaints
about inequity and discrimination, a number of these services are being
restructured to provide similar benefits to people in similar circumstances.
There is not necessarily any explicit recognition of the basis of the
original service provision in such changes. Some evidence suggested that
the extension of benefits was due to a greater awareness of equity :
'In terms of some of the particular benefits that are on the homosexual
lobby's agenda, as I understand it - superannuation, intestacy, property
division and so on - we have got no objection in principle to those
things being worked out on the normal basis of the laws of equity. My
understanding ... is that there has been significant advance in the
laws of equity so that some things such as emotional dependency and
other things can be taken into account, for example, in property and
separation. We have no objection to that.' [136]
4.164 These changes have often not been reflected by governments, certainly
not at the Federal level, where equal treatment in some areas is deemed
to be too expensive to afford.
4.165 The Committee heard evidence also that there could be a decrease
in services in some instances. An example was provided by the Gay and
Lesbian Counselling Service of Western Australia, which was to be excluded
from receipt of funding previously available:
'...our organisation is kept running by donations and small grants.
With the current discriminatory legislation it means that outside agencies
exclude GLCS [the Gay and Lesbian Counselling Service] from seeking
funds from the community on the grounds that GLCS represents something
unlawful...
This leaves GLCS with the ongoing difficult search for financial support
being once again exacerbated , not only be legislation but also by policy.'
[137]
4.166 Some changes are gradually occurring in areas such as health insurance,
when different groups are recognised for cheaper memberships, [138]
although others may be excluded from benefits such as the pharmaceutical
safety net because of definitions of 'family'. [139]
Medicare Benefits Schedule payments for procedures such as reassignment
surgery have also been rationalised, [140]
thus reducing some of the discrimination previously experienced. [141]
However, this does not mean that there is greater access for people who
have limited financial resources; the changes introduced only mean that
there is a schedule for a wider range of procedures so that benefits are
payable for procedures that were previously excluded. This may still be
of assistance only to people with private health insurance and in a fund
which covers re-assignment surgery. [142]
4.167 In other areas, changes are also occurring without the existence
of specific legislation. In referring to a case of harassment at work,
one witness noted that the employer had taken action supporting the victim:
'...the employer pulled in the people who had done the bullying, and
who had been vicious, and said to them that they had to change their
ways .. The employer used that kind of company policy to do that.
It is clearly happening in quite a number of organisations that I have
heard of. But, it seems to me, almost as if organisations have been
told that they must treat people better, and concern themselves with
equal opportunity. And having done that, they do not make a distinction
between certain groups having that and some groups not.' [143]
4.168 Insofar as some of these changes have occurred in the private sector
they may come under the control of State or Commonwealth legislation.
At state and local government level there appear to have been few approaches
to ensuring consistency. Notable exceptions have been New South Wales
which has introduced a review of all State legislation to ensure that
any inconsistencies are identified, [144]
and which also amended a range of legislation with the introduction of
the transgender anti-discrimination legislation. Victoria is also reviewing
all legislation; however, the somewhat broader range of exemptions and
exceptions in Victorian legislation will have an impact on the amount
of change required.
4.169 Difficulties in the provision of these general community services
may lie not so much in getting access but getting access on the same terms
and conditions as other people. Some of the examples of abuse and discrimination
may arise because of a desire to humiliate, or may also occur because
people are not sure if certain actions are allowed, or if protection is
offered in all circumstances:
'... 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?' [145]
4.170 A number of services appeared to have been provided in a manner
or at a level which differed substantially from the manner or level available
to others. All State and Territory legislation specifically prohibits
services from being provided differently (except in order to provide them
appropriately). However, a number of inbuilt factors have meant that the
quality or nature of the service has not been seen as wanting except by
those who feel disadvantaged.
Harassment and Vilification
4.171 There is limited discussion in State and Territory legislation
about harassment, and sexual harassment is the most common type of harassment
prohibited. Definitions of sexual harassment refer to the unwelcome nature
of the actions, and consider that the actions (usually unwelcome advances
or other 'unwelcome conduct') are made in circumstances 'in which a reasonable
person, having regard to all the circumstances, would have anticipated
that the person harassed would be offended, humiliated or intimidated.'
[146] Many witnesses considered that harassment
was a major problem for non-heterosexual and for transgender people [147]
and 'harassment' has been included in the definition of discrimination
at Clause 6 of the bill. However, given that harassment covers all forms
of sexuality as well as transgender, it necessarily proscribes harassment
on the grounds of heterosexuality as well.
4.172 Laws relating to vilification in Australian legislation, including
that of the states, is limited and relates mostly to racial vilification.
Although little effort has been made to make a clear distinction between
harassment and vilification, vilification is generally understood to be
public, and to be of a nature sufficient to cause people serious concern.
The Anti Discrimination Board of New South Wales defined vilification
as 'generally any public act that incites hatred towards, serious contempt
for or severe ridicule of a person or group of persons'. [148]
The overlapping of 'incitement to hatred' and vilification was referred
to by witnesses, but not explored in detail. [149]
4.173 Both the Commonwealth and New South Wales both prohibit racial
vilification. Queensland prohibits racial and religious vilification,
although one witness believed the provision was so complex that in reality
there was limited protection. This model was therefore not seen as useful:
'Those provisions are as good as useless because they are so onerous
in terms of the test that they simply cannot be relied upon to afford
any protection to people vulnerable to racial and religious hatred;
and the same issues would obviously apply to vilification on the basis
of sexuality. If the exemptions are too broad, and if they are not very
carefully worded, then the redress functions for vilification are notional
only.' [150]
4.174 Only the New South Wales Anti-Discrimination Act 1977 contains
anti-vilification provisions on sexuality and transgender grounds and
in respect of HIV/AIDS status. Protection in respect of sexuality does
not extend to people in respect of being heterosexual, bisexual or asexual,
although AIDS/HIV protection is not linked to gender or sexuality. The
NSW anti-vilification legislation has been utilised in two cases which
have received considerable public attention, some of it also unfavourable.
The first case related to the vilification and public harassment of a
man by a couple over a period of time. The individual who was homosexual
and HIV positive was awarded compensation:
'The decision sends an important message to the community that public
acts of vilification against lesbians, gay men and people who are HIV
positive or assumed to be so, will not be tolerated.' [151]
Exemptions and Exceptions from Provisions of the Legislation [152]
4.175 State and Territory legislation that prohibits sexuality or gender
discrimination provides for both general and specific exemptions.
4.176 General exemptions usually cover all provisions of the legislation,
allowing various groups to avoid compliance. On occasion, general exemptions
will run for a specific time period, allowing existing legislation to
continue operation, or allowing an organisation a period of time in which
to make arrangements for change.
4.177 All States and Territories provide exemptions in respect of existing
legislation, especially in areas such as superannuation and insurance
where Commonwealth laws come into play. In cases where the discriminatory
provisions of State and Territory laws continue, the effect of anti-discrimination
legislation may be limited.
4.178 The Sexuality Discrimination Bill 1995 currently only exempts laws
of the Commonwealth for a six-month period, and does not refer to State
or Territory legislation (Clause 29(2)). It could be amended to include
State and Territory legislation 'making discrimination unlawful regardless
of whether it is necessary to do the relevant act in order to comply with
a State law.' [153] The Anti Discrimination
Board of New South Wales suggested that the proposed Commonwealth legislation
should exempt both State and Commonwealth laws from compliance, but only
for a set period. [154] This would enable
time for some changes to be made and for State laws, possibly, to be amended
to reflect anti-discrimination processes.
4.179 It was suggested by the Anti Discrimination Board of New South
Wales that exemptions were often given without much thought: [155]
'... acts should not be exempt unless it is necessary to do
the act to comply with a law. Clause 29 of the bill currently uses the
term "in direct compliance" with a law. This terminology is
ambiguous - the exercise of a discretion may be in direct compliance
with a law or regulation. ' [156]
4.180 A number of witnesses agreed with this approach and submitted
that exemptions should be considered in more detail. The Anti Discrimination
Board of New South Wales also believed it was important to clarify the
meaning of terms such as courts, asking whether an order made by a tribunal
such as the Equal Opportunity Tribunal of NSW would be included. [157]
In the various State and Territory legislation, exemptions are also given
for acts of tribunals and courts.
4.181 General exemptions usually apply to religious bodies [158]
and to the services which they provide, including education. The effect
of this is to enable religious organisations to exclude people from office,
employment, education or, sometimes, access to other services, on the
basis of their sexuality or gender status.
4.182 The Victorian anti-discrimination legislation, for instance, refers
to religious beliefs or principles and allows discrimination ' if the
discrimination is necessary for the first person to comply with the person's
genuine religious beliefs or principles.' [159]
Such broad exemptions were criticised by witnesses, not so much in respect
of the nature of the religious belief but in respect of allowing that
belief to adversely affect others. [160]
4.183 These exemptions are often worded so as to use the 'susceptibilities'
[161] of church members as the main guide
of action. In theory, this could mean that the religion would need to
demonstrate that its stated principles did not permit acceptance of non-heterosexual
people and/or the practice of their sexuality. In reality the proviso
may enable religions to state that substantial aspects of their operations,
including the provision of community services such as accommodation, counselling
and employment services (some possibly funded by government) should be
exempt from legislation.
4.184 Although none of the major churches tolerate homophobia or violence
against non-heterosexual people, they clearly do not all accept that it
is possible to either have non-heterosexual people as providers of religious
services [162] or as providers of educational
and other services, because there is no separation between aspects of
life: 'This is the thing that concerns me the most, the divorce between
what some people see as sacred and secular. The Christian view of life
affects all of life...'. [163]
4.185 Some witnesses indicated that churches already have sufficient
protection available in employment matters because they could use current
'behaviour' legislation to justify dismissal. [164]
However, this would possibly only apply to the employment of people in
education and other services, and not to the employment of people as ministers
or priests. It appears from some evidence that many religious groups,
while not excluding non-heterosexual people from congregations, [165]
would not wish to employ them in a range of areas. [166]
Hence both employment as well as dismissal rights are relevant:
'The problem with this bill is that it could provide for some people
an offence against their conscience born of their religious convictions,
especially in the area of employing people for which they are not given
any protection. It would seem that this ingredient of the bill could
conflict with that part of the constitution which prevents the Commonwealth
from making any law prohibiting the free exercise of any religion.'
[167]
4.186 Another witness was opposed to the way in which the proposed religious
exemption was framed, suggesting that it would put the onus on the organisation
'to prove injury to the susceptibility of their adherents':
'...which, from a freedom of religion point of view, appears to go
close to violating section 116 of the constitution by essentially making
the content of the religion and the state of mind of its adherents a
matter of scrutiny by the courts.' [168]
4.187 This is not to say that all churches or religious groups approved
of exemptions or supported the proposed exemptions for the Sexuality Discrimination
Bill 1995: ' we disagree with discrimination in any form at all against
any person, in any place, for any reason.' [169]
There are two distinct reasons for this. The first is that some religious
groups, and other bodies, believe that churches will not learn to be tolerant
if they are always able to gain exemptions from the operation of legislation.
[170] In this argument, the need to distinguish
between secular and religious activity was emphasised, contrary to the
approach of some religious bodies which did not believe it was possible
to make a distinction.
4.188 The second reason was that a religious group could be sufficiently
opposed to the legislation to argue that it should not proceed. In this
case, exemptions were not necessary. A development of this argument was
to seek no exemption but, possibly, to leave open the issue of unconstitutionality
in respect of legislation which seemed to go against religious freedom.
A further aspect noted by some religious groups was that the exemptions
had only been put in as an afterthought and this discriminated against
churches by making them appear to be bigoted; further, there was no guarantee
that such exemptions would not in time be repealed:
'We would like to put on the record our concern about exemptions and
the use of exemptions in bills such as this, and in any such bills,
for religious institutions, because it is probably fair to say that
we are of the view that, in due course, we will be victimised, we will
be called bigots, we will be called names which are untasteful and we
will be seen as different because we have exemptions under this legislation
or any legislation.' [171]
4.189 Another viewpoint was that there should not be blanket exemptions,
but that organisations should have to request to be excepted from provisions:
'I have to say my preference would be to not have the exemptions, as
a beginning, there in the bill, but rather to perhaps have some facility
... for ... organisations appealing for exemption, rather than providing
a wholesale exemption.' [172]
4.190 One witness also raised the possibility of people using the religious
belief exemption in order to express their own prejudices:
'My concern is more that people who are homophobic for irrational reasons
might claim under the act that they discriminated on the grounds of
their religious belief despite not having any religious belief. It may
be difficult in some cases to determine that that person has discriminated
on the grounds of their religious belief.' [173]
4.191 Clause 23 of the Sexuality Discrimination Bill 1995 prohibits discrimination
in respect of the operation of Commonwealth programs, and Clause 28 of
the Bill requires a religion to demonstrate that either its principles
will be breached or the susceptibilities of its adherents will be offended,
by certain acts. The Committee believes that Clause 28 must be subject
to the provisions of Clause 23. While a 'body established for religious
purposes' has a right to its religious doctrines, provision of funding
from the Commonwealth government, either directly or indirectly, for certain
services including employment, training, refuges, health, counselling
is to be subject to Clause 23.
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 ...'
4.192 Similar exemptions to those available for religious organisations
may be available for various charitable, not-for profit or voluntary organisations,
and it is possible that some services provided by religious organisations
may also be covered under these. However, many of the exemptions available
to these organisations are intended to preserve the existing rights of
the organisations. Organisations established for the purpose of providing
accommodation or other services for women, for example, may well be exempt
from providing such services for men (and, possibly, for transgender persons);
and organisations established to provide health services for bisexual
people for example, would not necessarily be obliged to provide these
services for others. Thus, some exemptions may include an affirmative
action component, recognising special needs.
4.193 Voluntary or charitable organisations which provide services to
the general community may have less freedom to exclude people on the basis
of sexuality or gender status. [174] In the
NSW anti-discrimination legislation, the term 'voluntary organisation'
is strictly defined, and does not include credit unions and sporting clubs.
As these provide important services, they cannot be allowed to exclude
members of the public on grounds which have little if any connection with
the purposes for which the organisation was founded. In the Victorian
legislation, charities are exempted under Section 74 of the act, and 'charitable
benefits' 'means benefits exclusively charitable according to Victorian
law.'
4.194 Some State and Territory legislation allows exemptions in respect
of employment where the employing body is a small business and employs
no more than a set number of people excluding family members. The Victorian
legislation has an exemption both for small business and also for a family
business. [175]
4.195 Such exemptions are not specifically linked to religious beliefs.
The basis of such exemptions, also available in respect of partnerships,
is practicality and a recognition of the more personal and intimate nature
of a small workplace.
4.196 In respect of the proposed Commonwealth legislation an exemption
was sought by organisations representing people who were in small businesses,
sometimes within a religious context. However, witnesses who were members
of different religious organisations did express a concern that they be
allowed a somewhat broader exemption based on the Victorian model, affecting
employment of people in small businesses, especially home-run employment:
'I think the question should be: should small businesses and home-run
businesses especially have the right to choose whom they would like
to have in their employment? ... I think they should not be denied the
right to say who would be the best for their position.' [176]
4.197 Another organisation, the Brethren, believed that a conscience
clause should be available which exempted employment both in homes and
in businesses, based on religious belief. Exemptions do exist in most
State legislation regarding employment in the home, [177]
and this is based on privacy and choice considerations, not religion.
Although the Brethren did not rent housing, they were also prepared to
argue on behalf of others that privately owned housing should also be
exempt. [178] This approach was supported
by another organisation: [179]
'...we wish to just request that at least a conscience clause could
be provided for persons such as ourselves which could easily be provided
... extending to us to cover the situation where we are faced with this
problem in our homes and particularly in our businesses.' [180]
4.198 The Northern Territory has general exemptions in relation to sport
and public health, whereby people may be excluded from areas or be subject
to various limitations depending on physical attributes or impairments;
or depending on an understanding of what was 'reasonably necessary' to
protect public health. Similar general exemptions exist in the Queensland
legislation. [181]
4.199 Insofar as the public health provisions are seen as directed against
homosexual men, some evidence suggested that issues of public health could
be better addressed by having less discriminatory treatment of homosexual
groups.
4.200 All legislation also provides that the relevant individual, such
as the Equal Opportunity Commissioner (or equivalent) or the Minister
may grant additional exemptions.
Specific exemptions
4.201 Specific exemptions are limited to particular areas of anti-discrimination
legislation and are intended to meet specific demands, objections or issues.
However there are substantial variations between States and Territories
in specific exemptions, and what may be a specific exemption in one State
may be a general exemption in another.
4.202 Some legislation allows exemptions in the area of accommodation
or employment in a private household, or employment in a small business.
In this context a small business is one which employs around five to six
people. Private accommodation generally means a household in which the
person providing accommodation, or a relative or near relative, [182]
also resides. This appears to meet the need for privacy and choice. Accommodation
such as nursing homes and hostels may also be exempt, although primarily
because it has been established for people of a particular group or gender
rather than specifically excluding transgender people or homosexual or
bisexual people.
4.203 The Northern Territory allows an exemption in respect of sexuality
where employment concerns the care of children and young people, as do
both the Queensland legislation [183] and
the Victorian legislation. [184]
4.204 These broader exemptions are phrased in such a way as to cover
not only young children but all 'minors'. For example, the Northern Territory
legislation states:
'A person may discriminate against another person on the grounds of
sexuality in the area of work where :
(a) the work involves the care, instruction or supervision of children;
and
(b) the discrimination is reasonably necessary to protect the physical,
psychological or emotional well-being of children, having regard to
all the relevant circumstances of the case including the person's actions.'
[185]
4.205 Logically then the exemption covers not only pre-school age, but
children and young people up to the age of 16, which would affect teaching
and other duties in all schools, even though in some cases there are separate
provisions in respect of private education. It may also affect guardianship
and similar situations, including (presumably) people who are responsible
for the care of children and young people in a range of services such
as refuges, hostels, community housing. and other state and private services
such as training programs, other educational services, and juvenile detention
centres. In the Victorian legislation it is specifically stated that the
exemption does not apply to TAFE or post secondary education.
4.206 Ostensibly, these exemptions may work to exclude people of any
recognised sexuality (lawful sexual activity) from the care of children
and young people because of the potential harm to the child. Gay men and
lesbians, however, believe it is directed against them - 'Such exemptions
are highly discriminatory and cater to ill-informed prejudices.' [186]
4.207 The ACT permits an exemption in respect of the care of children
when employment is in 'the place where the child resides'. This could
be read as including places other than a private household, although this
may not have been intended. This is to be distinguished from the Queensland
legislation which specifically interprets 'residential' care to be care
'at the person's home' (Section 27).
4.208 The Sexuality Discrimination Bill 1995 does not support the exclusion
of people from a range of activities on the grounds of their sexuality
or gender status. Insofar as employment in state public sectors is covered
by the Sexuality Discrimination Bill 1995, and employment in other areas
is also covered by the bill, many of the provisions of current state legislation
will be limited in their effect.
4.209 The South Australian and Victorian legislation have provisions
in respect of appearance such as dress and behaviour:
'An employer may set and enforce standards of dress, appearance and
behaviour for employees that are reasonable having regard to the nature
and circumstances of the employment.' [187]
4.210 Although the Victorian provisions sound unexceptionable, some witnesses
believed that they were directed against people who either were non-heterosexual
or who might appear to be non heterosexual. The South Australian provisions
are clearly linked to sexuality. [188] The
provisions could also apply to people of transgender status as they are
not limited in respect of sexuality or gender.
'If you assume that you can identify a person's sexuality by how they
dress, anyone who does not dress according to a particular standard
norm is actually put at risk of violence for being assumed to be gay
or lesbian. I think that puts everybody in the community at risk if
they do not dress appropriately.' [189]
4.211 As was noted by the South Australian Equal Opportunity Commission,
'there is little case law as to the meaning of "characteristic"
and it may be that the general public will assume that dress codes are
characteristics of sex or gender'. [190] To
some degree this is a reasonable assumption in terms of gender, although
it may be more difficult to distinguish fashion from dress codes peculiar
to a sexuality. One of the likely problems arising from any discrimination
regarding dress was that assumptions about dress could also affect people
who were not transgender or not of a specific sexuality.
4.212 The Sexuality Discrimination Bill 1995 does not consider the issue
of dress, although it may do so indirectly in the reference to 'characteristics'
in the definition of transgender. However, the emphasis in that definition
is not only on dress but also on physical characteristics.
4.213 The Committee considers that it is necessary for the Sexuality
Discrimination Bill 1995 to raise the issue of dress in order for any
other provisions in State or Territory anti-discrimination legislation
to be overridden especially with respect to employment of persons.
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 to be a transgender
person.
4.214 Specific exemptions may also be required in order to enable people
to state that a specific sexuality is an integral part of criteria for
employment. [191] This would enable people
of a sexuality other than heterosexual to gain access to specific types
of employment. This type of measure could also be seen as affirmative
action or positive discrimination.
4.215 At this time, there are no such provisions in legislation, although
these are available in the grounds of sex - see, for example, the New
South Wales Anti-Discrimination Act 1977, (Section 31), and age (Section
49ZYJ).
4.216 A number of witnesses believed that the exemptions in State and
Territory legislation were either excessive in number or so broad that
they limited the effect of legislation. One of the problems with broad
exemptions was that they could impose substantial barriers to a person
wishing to make a complaint:
'...exemptions need to be very carefully considered ... They can have
the impact of making the legislation of very limited use indeed. I draw
your attention again in that context to section 126 of the Queensland
legislation, which is the section that addresses racial and religious
hatred. Those provisions are as good as useless because they are so
onerous in terms of the test that they simply cannot be relied upon
to afford any protection to people vulnerable to racial and religious
hatred, and the same issues would obviously apply to vilification on
the basis of sexuality. If the exemptions are too broad, and if they
are not very carefully worded, then the redress functions for vilification
are notional only.' [192]
4.217 The Queensland Anti Discrimination Commission considered that a
one-part exemption test would be more practical and satisfactory for complainants.
[193]
Affirmative Action or Measures to Achieve Equality
4.218 The majority of the States and Territories that have legislation
to prevent sexuality discrimination provide for measures intended to achieve
equality, a recognition of the fact that discrimination on the basis of
gender or sexuality has caused some loss or disadvantage - 'special measures
exist primarily in order to overcome past historical disadvantage.' [194]
At the same time, they may also allow for certain exemptions or for acts
of discrimination, which help to establish or maintain separate services.
[195]
4.219 Different terms are used for these provisions. The Australian Capital
Territory provides for measures intended to achieve equality. The Northern
Territory provides for 'special measures'(Section 57), noting that there
is a time limit on these 'until equality of opportunity has been achieved'.
Victoria provides for 'special needs' (Section 82) and 'particular attribute'
service provision:
'An employer may limit the offering of employment to people with a
particular attribute in relation to the provision of services for the
promotion of the welfare or advancement of people with the same attribute,
if those services can be provided most effectively by people with that
attribute.' [196]
4.220 This form of provision would allow sexuality specific medical and
other community services.
4.221 Queensland provides for 'welfare measures' (Section 104) and 'equal
opportunity measures' (Section 105), although there is a time limit on
these, which, as with the Northern Territory legislation, is not specified.
Queensland also makes provision for clubs being established to cater for
minority cultures and disadvantaged people (Section 97). South Australian
legislation does not refer to special measures, but notes that the Equal
Opportunity Tribunal is able to make further exemptions which, inter alia,
'have regard (where relevant) to the desirability of certain discriminatory
actions being permitted for the purpose of redressing the effect of past
action.' [197]
'The special measures [exemption] is something we particularly approve
of because we do not have it in our state act. The Commissioner has
very recently gone in front of the state tribunal to get a tribunal
exemption, for example, to assist gay men who wanted to set up a housing
cooperative and, in doing that, to deny benefits to heterosexual people.
The special measures provisions in our act do not apply to sexuality...'
[198]
4.222 These special measures are not considered in detail in any of the
legislation, which allows scope for expanding coverage in a sympathetic
climate, although also leaving the option open to reduce special measures
in a less sympathetic environment.
4.223 As noted above, there was some support for the idea that the creation
of special measures could be seen as merely a means of overcoming problems
created by having too broad an interpretation of sexuality in the first
place. In short, that if the word 'sexuality' was used, or heterosexuality
was included within sexuality, then special measures would be required
to maintain some services and organisations for non heterosexual persons:
'...if we have legislation that says no-one should discriminate anywhere,
that would only apply in a world where there was no pre-existing suffering,
and that is clearly not the situation. If we have this purely normative
situation where we have legislation that says that no-one shall discriminate
in any way at all and we apply that in a situation where people are
suffering extremely through the structural imbalances, the legislation
will try to have us living in this fantasy land basically. We need to
protect the people who are being discriminated against but also at the
same time there needs to be positive discrimination in order to protect
those people in the few pockets of community which they do have.' [199]
4.224 This was seen by some people as a somewhat convoluted process which
could be dealt with by removing all reference to heterosexuality. However,
having the two processes was not necessarily seen as an insurmountable
problem:
'...while on the one hand I recognise that there is a huge difficulty
with discrimination against lesbians, gays, bisexuals and transgender
people and I think we really have to place considerable focus on righting
the wrongs that exist, at the same time, I think that if we look to
the future, and if we look at the current historical change from minority
group to commonalities that I was suggesting is happening now ... I
think inevitably, we have to use sexuality to include all sexualities.'
[200]
4.225 In Section 47 of the South Australian legislation there is a provision
to develop affirmative action programs, but these appear to be based on
'gender'. The extent to which this gender provision would assist people
of transgender status is not obvious. The legislation, while allowing
for single sex clubs, does not provide specifically for clubs and organisations
based on sexuality. It is not clear if single sex clubs can exclude people
on the basis of transgender status. Section 27 of the ACT Legislation
allows for action to provide equal opportunity for people designated under
the Act which covers both sexuality and transgender.
4.226 In the Northern Territory, special clubs may be established 'to
preserve a minority culture; or to prevent or reduce disadvantage suffered
by people of that group' [201] and in Queensland
similar measures apply. It is not clear how broadly the concept of minority
culture can be taken and if it is to include people from different sexuality
groups and from the transgender communities. A similar provision exists
in the Victorian legislation, and would clearly operate to protect sexuality
specific clubs or clubs:
'A club ... may exclude from membership a person who is not a member
of a group of people with an attribute for whom the club was established
if the club operates principally--
(a) to prevent or reduce disadvantage suffered by people of that group;
or
(b) to preserve a minority culture.' [202]
4.227 The absence from the Victorian legislation of any reference to
transgender people mean that there is no protection for transgender organisations.
4.228 There are no specific provisions in the NSW legislation for special
needs measures or for continuing existing organisations and services which
provide services especially for transgender people or for gays and lesbians.
4.229 Equal opportunity programs or affirmative action programs need
to be reported on regularly in order to determine if the legislation has
made any appreciable difference. This would be the case especially where
a time limit has been imposed in the legislation, as with Queensland and
the Northern Territory. Nonetheless, there are very few formal provisions
in any of the anti-discrimination legislation for measuring and assessing
this type of information. It is assumed that these would be included in
the reports that Commissioners are obliged to provide on a regular basis.
4.230 The Committee considers that special needs measures or any affirmative
action programs or services should be carefully scrutinised. While there
is room for some sexuality and gender specific organisations, limited
resources may require that services be available to a wider section of
the community. [203]
4.231 Where affirmative action programs or services are approved , the
Human Rights and Equal Opportunity 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.
Recommendation 10
That, where affirmative action programs or services are approved, the
Human Rights and Equal Opportunity 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.
Table 1.
| Jurisdiction |
Terms used for `sexuality' |
Heterosexuality or Bisexuality included?
|
| ACT |
Sexuality, defined as including homosexuality (including
lesbianism)
Transsexuality
|
Yes |
| NT |
Sexuality, defined as including homosexuality and transsexuality |
Yes |
| SA |
Sexuality, defined as including homosexuality and transexuality |
Yes |
| NSW |
Homosexuality, defined as meaning male or female homosexuals
Transgender grounds
|
No |
| VIC |
Lawful sexual activity
Not defined but the Equal Opportunity Commission suggests homosexuals
and lesbians included but not transgendered persons
|
Not defined but Equal Opportunity Commission suggests
heterosexuals are included |
| QLD |
Lawful sexual activity Not defined. The Queensland Anti
Discrimination Commission suggests homosexuality included but not
transgender |
Not specified but heterosexuality and bisexuality are
included according to the Queensland Anti Discrimination Commission |
| TAS |
Not applicable |
Not applicable |
| WA |
Not applicable |
Not applicable |
Footnotes:
[1] All States and Territories have some form
of anti-discrimination legislation, and in most cases this includes some
protection against discrimination on the basis of sexuality or gender
status. The relevant legislation is: the New South Wales Anti-Discrimination
Act 1977; the Queensland Anti-Discrimination Act 1991;
the South Australian Equal Opportunity Act 1984; the Victorian
Equal Opportunity Act 1995; the Tasmanian Sex Discrimination
Act 1994; the Western Australia Equal Opportunity Act
1994; the Australian Capital Territory Discrimination Act
1991; and the Northern Territory Anti-Discrimination Act
1992.
Submission, HREOC, Vol. 7, pp. 1574-1575.
[2] The Queensland Anti Discrimination Commission
noted that it had advised the Queensland Anti-Discrimination Act did not
provide any coverage for transgender persons per se (see Submission,
Queensland Anti-Discrimination Commission, Vol 2, p. 237.) since the
legislation only refers to 'sex', 'lawful sexual activity' and impairment'
as grounds. As noted by HREOC and other witnesses such grounds provide
very little coverage for transgender people, often because of the terminology
utilised.- see Chapters 5 and 6. See opinion on this issue by Submission,
Queensland Anti Discrimination Tribunal, Vol 2, pp. 241-246.
[3] See below, Paragraphs 4.8-4.9, 4.44-4.45
The ACT also passed the Administration and Probate (Amendment) Act
1996, allowing access by homosexual and de facto partners to deceased
estates of partners etc, and amended the Family Provision Act 1969
to allow a range of partners to contest a will - see Paragraph 4.9. See
Submission, HREOC, Vol 7, p. 1586.
[4] Submission, HREOC, Vol 7, pp. 1559-1560.
[5] Croome and Toonen v Tasmania, CLS
1997 HC 5.
[6] Evidence, Tasmanian Gay and Lesbian
Rights Group, p. 359.
[7] Technically the wording of the definition
of 'family responsibility or family status' would not exclude same sex
couples.
[8] Submission, Gay and Lesbian Counselling
Service of WA Inc., Vol 1, pp. 147-148.
[9] See below, Paragraph 4. 24.
Evidence, Dr Vivienne Cass, p. 522.
Evidence, Commissioner for Equal Opportunity Western Australia,
p. 534.
[10] Evidence, HREOC Tasmanian Office,
pp. 353-354.
See Chapter 2, Paragraphs 2.45 - 2.47.
[11] See Chapter 2, Paragraph 2.47.
[12] See Chapter 5, Paragraph 5.176.
[13] See below, Paragraphs 4.183-4.193 and
Recommendation 8.
[14] Evidence, Anti Discrimination Board
of New South Wales, p 110.
Submission, Anti-Discrimination Board of NSW, Vol 8, p. 1823.
[15] See Chapter 1, Paragraphs 1.18-1.21.
[16] Evidence, Anti Discrimination Board
of New South Wales, p.111.
[17] See Chapter 2, Recommendation 1.
Chapter 4, Paragraphs 4.95-4.102.
[18] New South Wales Anti Discrimination
Act 1977, Section 38A(c).
[19] Evidence, Dr Finlay, p. 387.
[20] Submission, South Australian Commissioner
for Equal Opportunity, 'I feel that when a person identifies as or assumes
the characteristics of the other sex this is an issue of gender or sexual
identity, it is not an issue of sexuality or sexual orientation.' Vol
2, pp. 251-252.
Evidence, Queensland Anti Discrimination Commission, p. 686.
[21] See Chapter 1, Paragraphs 1.38-1.44.
Evidence, Australian Transgender Support Association, p. 790.
Submission, Ms A Hughes, Vol 6, pp. 1284-1295.
Submission, Ms N May-Wilby, Vol 8, pp. 1890-1895.
The main issue is that transsexuals are seen as persons who have undergone
sexual reassignment surgery, and the term transgenders includes both transsexuals
and also other people who have not undergone surgery, and are not pre-operative
(intending to have surgery).
[22] The NSW legislation also requires that
the transgender person be compared with persons who are not transgender
(Section 38B (1) (b)). In both cases, the test of 'reasonableness' may
be the deciding factor. Alternatively, unfavourable treatment on the basis
of characteristics may be a more clear-cut means of determining discrimination.
[23] Evidence, Queensland Anti Discrimination
Commission, p. 683.
Evidence, Australian Transgender Support Association Inc, pp.
790-791.
[24] Evidence, Queensland Anti-Discrimination
Commission, p.682.
Evidence, Victoria Equal Opportunity Commission, p. 230.
[25] Evidence, Victoria Equal Opportunity
Commission, p. 230.
[26] Evidence, Victoria Equal Opportunity
Commission, pp 221, 225.
[27] See Chapter 1, Paragraphs 1.30-1.35.
[28] Evidence, Victorian Equal Opportunity
Commission, p. 228.
[29] Evidence, Australian Federation
of AIDS Organisations, p. 716.
See below, Paragraph 4.169.
[30] See Tasmania, Criminal Code Act 1924,
Sections 122 and 123. The relevant sections cover a number of acts 'against
nature' such as male and female same sex activity and heterosexual anal
sex.
[31] Tasmania, Criminal Code Amendment Act
1997.
[32] Evidence, Tasmanian Gay and Lesbian
Rights Group, pp. 359-360.
[33] See Paragraphs 4.149-4.156 below.
[34] Submission, Dr K Franklin provides
comments on the 1996 legislation, Vol 1, pp. 147-148.
[35] Evidence, Western Australian Equal
Opportunity Commission, p. 545.
Evidence Australian Council for Lesbian and Gay Rights (W.A.),
p. 564.
Evidence, PFLAG, p. 655.
[36] Evidence, Gay and Lesbian Counselling
Service of Western Australia, p.554.
Evidence, Australian Council for Lesbian and Gay Rights (W.A.),
p. 564.
[37] Evidence, Western Australian Equal
Opportunity Commission, pp. 545-546.
[38] Submission, Anti Discrimination
Board of New South Wales, Vol 8, p. 1821.
Evidence, Ms K Walker, pp. 279-280.
[39] Submission, Anti Discrimination
Board of New South Wales, Vol 8, p.1821.
[40] See Chapter 1, Paragraphs 1.22-1.24.
Chapter 2, Footnote 56.
Evidence, Australian Bisexual Network, pp 671,672, 676.
[41] Submission, Anti Discrimination
Board of New South Wales, Vol 8, p. 1822.
[42] Submission, Anti Discrimination
Board of New South Wales, Vol 8, p. 1821-1823.
Evidence, Anti Discrimination Board of NSW, in respect to bisexuality,
'there is almost no evidence or research on this question whatsoever.
In that sense, therefore, it is in there for the sake of completeness
rather than anything else.' p. 111.
[43] Evidence, Gay Men and Lesbians
Against Discrimination (GLAD), p. 339.
Evidence, Queensland AIDS Council, p. 716.
[44] Evidence, Dr Vivienne Cass, p.
524.
Chapter 5, Paragraphs 5.110 -5.123. Although heterosexual organisations
are not prohibited from requesting permission to operate special services,
they would have to demonstrate need.
[45] See below, Paragraph 4.131.
Chapter 5, Paragraph 5.123.
[46] See below, Paragraph 4.175.
[47] Evidence, Australian Bisexual Network,
'If a person chooses to identify as asexual, in that they are not attracted
to any person or any gender, then that could be legitimate grounds for
having that included.' p. 673.
Evidence, Queensland Anti Discrimination Commission, p. 686.
[48] See Chapter 4, Paragraphs 4.80- 4.84,
4.88.
[49] Western Australia, Equal Opportunity
Act 1984, Section 4 Interpretation.
[50] See below, Paragraphs 4.82-4.84.
[51] Evidence, Queensland Anti Discrimination
Commission, p. 682.
[52] Queensland Anti Discrimination Act
1991, Section 4.
[53] South Australia Anti Discrimination
Act 1984, Section 33.
[54] See below, Paragraphs 4.194-4.197.
[55] Submission, Homodefactos Association
Inc, (emphasis in original), Vol 10, p. 2430.
[56] Submission, Homodefactos Association
Inc, Vol 10, p. 2431.
[57] Example, Evidence, Queensland Association
of Gay and Lesbian Rights, pp. 722-723.
[58] Submission, Ms Thompson and Ms
Connor, Vol 5, p. 930.
[59] Submission, Homodefactos Association
Inc. (emphasis in original), Vol 10, p. 2432.
[60] See Chapter 6, Paragraphs 6.34-6.35 and
Recommendation 1.
[61] See Chapter 6, Paragraph 6.69 and Recommendation
5.
[62] See below, Paragraphs 4.67, 4.69.
[63] Anthony Dickey, Family Provision After
Death (1992), p. 43.
[64] Submission, Queensland Anti Discrimination
Board, Vol 2, p. 238.
Submission, Australian Council of Trade Unions Queensland Branch,
Vol 11, p. 2440.
[65] New South Wales, Anti-Discrimination
Act 1977, Section 4(1).
[66] South Australia Equal Opportunity Act
1984, Section 33(2).
[67] Given that transsexual is a category covered
under sexuality.
[68] NSW Anti Discrimination Act 1977,
Sections 49ZF and 49 ZG.
[69] NSW Anti Discrimination Act 1977,
Section 49A.
[70] NSW Anti Discrimination Act 1977,
Section 49 ZXB.
[71] Submission, Inner City Legal Centre,
Vol 12, p. 2741.
[72] Evidence, Mr Smith Metropolitan
Community Church, p. 172.
[73] See below, Paragraphs 4.89-4.93.
[74] Evidence, Senator Murray, p. 560.
[75] ACT Discrimination Act 1991, Section
7(2). Examples of such characteristics range from interrupted employment
patterns or unreliability in the workforce because of child rearing (women);
dress and manner (homosexuals and transgender people); unreliability and
lack of productivity (people with disabilities in respect of employment).
[76] See below, Paragraphs 4.203-4.213, especially
4.211.
[77] Submission, Ms J Millbank, Vol
1, p. 119.
[78] See Chapter 5, Paragraphs 5.76-5.95.
[79] NSW Anti-Discrimination Act 1977
Section 38B (1) (c).
[80] Submission, HREOC, 'there is some
support in overseas cases for the view that a failure to recognise legally
the reassigned sex of post-operative persons of transgender identity may
breach certain human rights obligations pursuant to the European Convention
on Human Rights. It has also been suggested that denial of legal recognition
could constitute a breach of the ICCPR.', Vol 7, p. 1590.
[81] The current provision is included in the
definition of transgender. The proposed changes to this definition (see
Recommendations 5 and 6 of Chapter 1) cover both non-operative and pre-operative
transgenders.
[82] Submission, Ms S. C. Else, Vol
2, p. 339.
[83] See Chapter 5, Paragraphs 5. 65- 5.68.
[84] Submission, Ms S.C. Else, Vol 2,
p. 339.
[85] See Chapter 5, Paragraph 5.68 and Recommendation
3.
[86] Submission, South Australian Equal
Opportunity Commissioner, Vol 2, p. 252.
[87] Evidence, Australian Bisexual Network,
p. 671.
[88] Submission, Gay and Lesbian Lawyers
(GALL), 'a provision covering imputed sexuality [should] be included ...
irrespective of whether presumptions about the person's sexuality are
correct. It is not the sexuality of the victim that should be an element
in proving the discrimination, but rather the perceptions or actions of
the discriminator.' Vol 3, p. 480.
[89] See Chapter 2.
[90] See Chapter 3, Paragraph 3.74.
[91] Example, Submission, Ms J Millbank
, Vol 1, p. 123.
[92] Submission, Gay and Lesbian Rights
Lobby, Vol 5, p. 1027.
Evidence, ACTU, 'if someone takes on a position in a religious
school, part of that undertaking is to uphold the ethos in employment
and do all of that, but we say that these exemptions have nothing to do
with that.' p. 318.
Evidence, Ms Walker and Mr Morgan, pp 281-282.
See Chapter 5, Paragraphs 5.30-5.35 on systemic discrimination.
Submission, Australian Catholic Bishops Conference, stated that
although there was no specific section in the draft legislation regarding
exemptions equivalent to S38 of the Sex Discrimination Act 1984,
an undertaking had been given that religious schools would be exempt,
Vol 4, p. 719.
[93] See Chapter 2, Paragraphs 2.7, 2.13-2.17.
[94] Submission, Mr D. More, Vol 1,
pp. 163-167.
[95] See below, Paragraphs 4.192-4.202.
[96] See below, Paragraph 4.202.
[97] Submission, Ms. L. Darling, Vol.
1, p. 153.
[98] See above, Paragraph 4.42.
[99] Evidence, Lesbian and Gay Community
Action, where reference was made to a woman's property being removed from
her rented accommodation presumably because she was lesbian, p. 462.
[100] See also Chapter 2 and Chapter 6.
[101] Evidence, Gay and Lesbian Rights
Lobby, p.185.
[102] See Chapter 6, Paragraphs 6.22-6.24.
[103] Submission, Blue Mountains Lesbian/Gay
Community Committee, Vol. 1, p. 178.
[104] See below, Paragraphs 4.220-4.223.
[105] See Chapter 2, Paragraphs 2.6-2.34.
Submission, Mr Levi, Vol. 1, p. 180.
[106] For this reason many witnesses were
opposed to the idea of having to accept heterosexuals into services which
had been developed for non-heterosexuals, and hoped for an exemption on
a special needs basis - See below, Paragraphs 4.223-4.225.
[107] Submission, Ms Thompson and Ms
O'Connor, Vol. 5, p. 932.
[108] Submission, Ms Peters and Ms
Langley, Vol. 1, p. 12.
[109] New South Wales, Victoria, Queensland,
the Northern Territory and the Australian Capital Territory prevent discrimination
in relation to clubs and club membership, although there are usually exemptions
in respect of club membership allowing sexuality-specific organisations
to operate, partly as an affirmative action or positive discrimination
measure. The definition of 'club' is important in limiting access, see
Paragraphs 4.129-4.130.
[110] Nonetheless, there are some limitations.
While there can be no discrimination in relation to administration, there
are exemptions in respect of participation in competitive sport.
See below, Paragraphs 4.132-4.137.
[111] Queensland, New South Wales and Victoria
prevent discrimination in relation to membership of local government administration.
[112] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1829.
Evidence, GLAD, pp 339-340.
[113] Evidence, GLAD, p. 340.
[114] Evidence, Gay and Lesbian Rights
Lobby, p. 183.
[115] Sexuality Discrimination Bill 1995,
Clause 21.
[116] Evidence, Women in Sport Foundation,
p. 201.
[117] Evidence, Anti Discrimination
Board of New South Wales, p. 116, see also Evidence, Australian
Transgender Support Association Inc., pp. 795-796.
[118] Evidence, Anti Discrimination
Board of New South Wales, p. 109.
[119] Evidence, Women in Sport Foundation,
p. 205.
[120] Evidence, Transgender Law Reform
Association, p. 298.
Submission, Team Sydney, Vol. 2, pp. 231-232.
[121] Evidence, Mr Sid Spindler, p.
241.
[122] Submission, South Australian
Equal Opportunity Commission, Vol. 2, pp. 252-253.
[123] See Chapter 6, Paragraphs 6.105-6.132.
[124] Submission, Gender Council of
W.A. Inc, Vol. 5, p. 1273.
[125] Evidence, Anti Discrimination
Board of New South Wales, p. 118.
[126] See Chapter 6, Paragraphs 6.124 - 6.132.
[127] Evidence, Anti Discrimination
Board of New South Wales, pp. 117-118.
[128] Senate Select Committee on Superannuation,
Seventeenth Report, Canberra, November 1995.
[129] See Chapter 6, Paragraph 6.132, and
Recommendation 8.
[130] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1832.
[131] Evidence, North Melbourne Legal
Service/Federation of Community Legal Centres, p. 326.
[132] Submission, Ms Peters and Ms
Langley, 'We believe gender should be removed from all but medical documentation.'
Vol. 1, p. 12.
[133] Submission, Ms S C Else, Vol.
2, p. 338.
[134] Submission, Ms Thompson and Ms
Connor, examples given were checking into a motel and as a same sex couple
wanting a double bed; or getting a bank loan and explaining why one might
not be getting married or having children, Vol. 5, p. 930.
[135] See Chapter 6, Paragraphs 6.95-6.98.
[136] Evidence, Australian Family Association
WA, p. 588.
Evidence, Anglican Social Responsibilities Commission where reference
is made to the belief that the age of consent should be uniform, p. 599.
[137] Evidence, Gay and Lesbian Counselling
Service of Western Australia, pp. 548-549.
[138] See Hope and Anor v NIB Health Funds
Ltd 1995; in this case the definitions allowed a gay couple access
to a certain rate of insurance because of one being a contributor and
another a dependent.
Submission, Ms J Millbank, Vol. 1, p. 118.
[139] Evidence, Department of Health
and Family Services, p. 846.
[140] Evidence, Department of Health
and Family Services, pp 845-846.
[141] Submission, Ms C Ronalds: 'In
my view, this is a denial of access to a benefit which should be available
to a person who requires or requests reassignment surgery, with the appropriate
medical safeguards now in place. The current system means that a person
with independent financial resources and medical insurance can have the
benefit of the surgery while a person without such resources is denied
access to that benefit.' Vol. 2, p. 299.
[142] Evidence, Department of Health
and Family Services, p. 851.
[143] Evidence, Dr Vivienne Cass, p.
525.
[144] New South Wales, Anti Discrimination
Act 1977, Section 121.
[145] Evidence, Australian Federation
of AIDS Organisations, p. 716.
[146] Commonwealth Sex Discrimination Act
1984 Section 28A.
Victoria Equal Opportunity Act 1995 Section 85
[147] See Chapter 2, Paragraphs 2.36-2.41.
[148] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1818.
[149] See Chapter 2, Paragraph 2.46.
[150] Evidence, Queensland Anti Discrimination
Commission, pp. 683-684.
[151] Submission, Inner City Legal
Centre. The second case concerned a school student unable to attend school
because of harassment on grounds of sexuality, Vol. 12, p. 2741.
[152] Although most witnesses did not make
any distinction between an exemption and an exception, the submission
of the Anti Discrimination Board of New South Wales pointed out
that Clauses 28-30 of the proposed legislation were exceptions, and Clauses
31-34 were exemptions, Vol 8, p. 1812. In this context, what are called
general exemptions in other legislation would be called general exceptions.
This is added to later in the submission, p. 1831 where a distinction
is suggested between the General Exemptions of Part 2, Division 5 of the
proposed legislation (to become Exceptions), and the Exemptions which
the Commissioner would be able to grant, Vol. 8, pp. 1812, 1831.
[153] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1831.
[154] Submission Anti Discrimination
Board of New South Wales, Vol. 8, p. 1813.
[155] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1813.
Evidence, Anti Discrimination Board of New South Wales, pp. 106-107.
[156] Submission Anti Discrimination
Board of New South Wales, Vol. 8, p. 1831.
[157] Evidence, Anti Discrimination
Board of New South Wales, p. 106.
Submission, Anti Discrimination Board of New South Wales, Vol.
8, p. 1813.
[158] Evidence, Equal Opportunity Commission
Victoria, p. 234.
[159] Victoria Equal Opportunity Act 1995,
Section 77.
[160] Evidence, Ms K Walker, p. 282.
Evidence, ALSO Foundation, pp. 321-322.
[161] Evidence, p. 240. The use of
the word 'susceptibility' was questioned during the Committee's hearings.
In evidence, the author of the bill, former Senator Spindler, stated that
'We were intent to find an expression which encompassed convictions, but
also feelings - that it was a bit wider, in a sense, than simply strictly
teachings or tenets, that that is how people themselves, directly and
personally, were affected by it'.
[162] Evidence, Baptist Churches of
Tasmania, pp. 417-418.
[163] Evidence, Baptist Churches of
Tasmania, pp. 416, 420.
[164] Evidence, ACTU, p. 315.
[165] Evidence, Baptist Churches of
Tasmania, p. 421.
[166] See below, Paragraphs 4.196-4.197.
[167] Evidence, Baptist Churches of
Tasmania, pp. 406, 413.
[168] Evidence, Australian Family Association,
pp. 593-594.
[169] Evidence, Anglican Social Responsibilities
Commission, p. 598.
[170] Evidence, Metropolitan Community
Church, p. 171.
[171] Evidence, Baptist Churches of
Tasmania, pp. 420, 421.
[172] Evidence, Dr Vivienne Cass, p.
532.
Evidence, Western Australian Commissioner for Equal Opportunity,
p. 539.
[173] Evidence, Australian Council
for Lesbian and Gay Rights (WA), p. 566.
[174] See Chapter 2, Paragraph 2.102.
[175] Evidence, Brethren Victoria,
p. 270. Equal Opportunity Act 1995, Section 21(1); NSW Anti-Discrimination
Act 1977, Sections 38C(3)(c) and 49ZH(3)(6).
[176] Evidence, Focus on the Family,
p. 265.
[177] That is, providing domestic or child
care services, as distinct from employment in a commercial operation which
is operated from a person's home.
[178] Evidence, Brethren, p. 270.
[179] Evidence, Australian Family Association
WA Branch, pp. 593-594.
[180] Evidence, Brethren, p. 267. Representatives
stated that they had already obtained an exemption under the Industrial
Relations Act, p. 269.
[181] See Queensland Anti Discrimination
Act 1991, Section 107.
Evidence, Victorian Equal Opportunity Commission, p. 230.
[182] Definitions of relative and near relative
vary - See above, Paragraphs 4.44-4.48.
[183] Queensland, Anti Discrimination Act
1991, Sections 27 and 28.
[184] Victoria, Equal Opportunity Act 1995,
Section 25.
[185] Northern Territory, Anti-Discrimination
Act 1992, Section 37.
[186] Submission, Coalition of Activist
Lesbians (COAL), Vol. 3, p. 616.
[187] Victoria, Equal Opportunity Act 1995,
Sections 24 and 40, employment and education respectively; South Australia,
Equal Opportunity Act 1984, Section 29(4).
[188] 'Where - (a) a person discriminates
against another on the basis of appearance or dress; (b) that appearance
or dress is characteristic of, or an expression of, that other person's
sexuality; but (c) the discrimination is reasonable in all the circumstances,
the discrimination will not, for the purposes of Division II, be taken
to be discrimination on the ground of sexuality.' South Australia Equal
Opportunity Act 1984 Section 29(4)
[189] Evidence, p. 465 Lesbian and
Gay Community Action
[190] Submission, South Australian
Equal Opportunity Commission, Vol. 2, p. 253.
[191] Submission No. 173, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1823.
[192] Evidence, Queensland Anti Discrimination
Commission, pp. 683-684 and 688,694.
[193] Evidence, Queensland Anti Discrimination
Commission, p. 694.
[194] Evidence, Anti Discrimination
Board of New South Wales, p. 111.
[195] Evidence, Tasmanian Gay and Lesbian
Rights Group, p. 364.
[196] Victoria Equal Opportunity Act 1995,
Section 19, and also see Section 55.
[197] South Australia, Equal Opportunity
Act 1984, Section 92(6)(a).
[198] Evidence, South Australia Equal
Opportunity Commission, that is, the legislation did not have a separate
section on 'special measures' and did not include sexuality in any of
the special exemptions, p. 450.
[199] Evidence, Gay Men and Lesbians
Against Discrimination (GLAD), p. 342.
[200] Evidence, Dr Vivienne Cass, p.
524. However see also below Chapter 5, Paragraphs 5.49 - 5.52.
[201] Northern Territory, Anti Discrimination
Act 1992, Section 47(1)(a) and (b).
[202] Victoria, Equal Opportunity Act 1995,
Section 61.
[203] See above, Paragraph 4.131.