Introduction – Obligations for Legislation
The United Nations have placed pressure on Australia and other countries to support greater recognition of discrimination on the basis of sexual orientation, gender identity and intersex status in direct federal legislative provisions. UN directives exist on legislation in this area that should be more directly referenced and reflected in the Australian Bill. I advise the Senate Legal and Constitutional Affairs Committee to mind their language use – their ‘GLBs’ and ‘TIQs’, so to speak – so that the achievements thus far in the Bill are furthered to be as effective as possible in protecting gay, lesbian, bisexual, transgender, intersex and otherwise queer/ questioning people’s rights in congruence with our obligations under specific aspects of UN agreements. I recommend the Committee directly references specific human rights instruments currently missing from the Bill’s “Division 2—Objects of this Act”.
Inclusion of Protections for People with Intersex Attributes/ Status
The UN outlined the need for legislative protections around intersex attributes in direct federal legislative provisions, and Organisation Intersex International (Oii) Australia has previously submitted advice to the Committee around how best to word such protections informed by their significant knowledge of these issues. The Draft Bill did not adequately reflect such requirements and guidance. I recommend the Committee specifically enumerates the protections against discrimination on the basis of intersex attributes/ status currently missing from the Bill’s “Division 2—Interpretation” (in section 6 The Dictionary, section 17 The Protected Attributes, and section 49 When a Person Sexually Harasses Another Person).
Inclusion of Protections for all People on the Basis of Gender Expression
The Australian Government is congratulated and thanked for including recognition of discrimination on the basis of gender identity in the Draft Bill. The Draft Bill defines gender identity in a manner which makes it correspond most precisely with transgender issues. However, there should also be protection for non-traditional expressions of gender which are not necessarily related to a so-called “opposite sex” (or transgender) gender identity. I recommend the Committee specifically enumerates additional and separately named protections against discrimination on the basis of gender expression currently missing from the Bill’s “Division 2—Interpretation” (in section 6 The Dictionary, section 17 The Protected Attributes, and section 49 When a Person Sexually Harasses Another Person).
Exemptions – Default Vs. Opt-in Models
The UN and UNESCO clarified that the right to freedom of religious expression ends where it impinges upon GLBTIQ people’s rights to protection from discrimination on the basis of sexual orientation, gender identity and intersex attributes. Recent research has shown that Australian GLBTIQ youth forced to attend religious schools by their parents/ guardians and state-specific age-requirement schooling legislations suffer significantly increased discrimination, verbal abuse, violence and associated self-harm and suicide risk. The Draft Bill affords religious educational institutions a default model of exemption around discrimination on the basis of sexual orientation and gender identity which hands them a legally-sanctioned right to discriminate against one of the most vulnerable youth groups in Australian schools today. This right is unnecessary and should not be made automatic. I recommend its withdrawal or replacement with an opt-in model of exemption within the Bill’s “Division 4—Exceptions to unlawful discrimination” (in section 33 Exceptions for religious bodies and educational institutions).
Recommendations – Changing the Human Rights and Anti-Discrimination Bill
The report concludes with a series of numbered recommendations reiterating the recommended changes to the Human Rights and Anti-Discrimination Bill arising out of research, consultations, and consideration of international human rights polity.