UNCLOSETING

D ISCRIMINATION: CONSULTATION REPORT ON THE INTERSECTIONS OF DISCRIMINATION

Authored b y: S enthorun R aj 1

MARCH 2012 ABOUT THE GAY & LESBIAN RIGHTS LOBBY Established in 1988, the NSW Gay & Lesbian Rights Lobby (GLRL) is the peak organisation for lesbian and gay rights in NSW. Our mission is to achieve legal equality and social justice for lesbians, gay men and their families. The GLRL has a strong history in legislative reform. In NSW, we led the process for the recognition of same-sex de facto relationships, which resulted in the passage of the Property (Relationships) Legislation Amendment Act 1999 (NSW) and subsequent amendments. The GLRL contributed significantly to reforms introducing an equal age of consent in NSW for gay men in 2003 and the equal recognition of same-sex partners in federal law in 2008. The rights and recognition of children raised by lesbians and gay men has also been a strong focus in our work for over ten years. In 2002, we launched Meet the Parents, a review of social research on same-sex families. From 2001 to 2003, we conducted a comprehensive consultation with lesbian and gay parents that led to the reform recommendations outlined in our 2003 report, And Then The Brides Changed Nappies. The major recommendations from our report were endorsed by the NSW Law Reform Commissions report, Relationships (No. 113), and enacted into law under the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW). In 2010, we successfully lobbied for amendments to remove discrimination against same-sex couples in the Adoption Act 2000 (NSW).
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Special thanks to Curtis Dickson, Robert Grigor and Alex ODonnell for transcription, research and writing assistance. I would also like to thank all the participants at the various consultations for their thoughtful, honest and engaging contributions.

EXECUTIVE SUMMARY The Uncloseting Discrimination consultation series revealed numerous areas in need of policy and legislative reform to ensure substantive equality and an elimination of discrimination against sexual and gender minorities or lesbian, gay, bisexual, transgender and intersex (LGBTI) communities. The Federal Government should consider the following recommendations as part of its Australian Human Rights Framework. Specifically, legislative and policy reforms must address the intersectional experiences of discrimination, and the problem with legitimating such discrimination through the use of exemptions. As an organisation that advocates on behalf of gay men, lesbians and their families, we do not represent the broader bisexual, transgender and intersex communities. We urge that all policy development relating to sex and gender diverse individuals be developed with specific consultation with these communities. Intersectional approach to addressing discrimination. The protection and promotion of human rights for lesbians, gay men and their families is essential for both personal and political security. Human rights should be treated as indivisible and interdependent. Legislative and policy initiatives should not seek to impose a hierarchy between civil and political rights on the one hand, and economic, social and cultural rights on the other. In doing so, all reforms must make clear the intersections between sexuality and vulnerable groups including: Aboriginal and Torres Strait Islanders; young people; elders; refugees and asylum seekers; people living with a disability; multicultural communities; and people living with HIV. Sex and gender diversity should also be addressed in consultation with these communities. Inclusive terminology. Reforms should use broadly inclusive terms, such as sexual orientation, when noting particular characteristics that are subject to discrimination. Terminology relating to sex and gender diversity should also be included, and developed in consultation with these communities. Comprehensive resources and ongoing consultation. The Federal Government must have specific funding allocated for projects and consultation aimed to promote the human rights of sexual minorities. There should also be greater ministerial accountability and responsibility for consultation in relation to the human rights of people with diverse sexual orientations. A Commissioner with such a portfolio should be appointed to the Australian Human Rights Commission. Similar resourcing should extend to sex and gender diverse communities in consultation with these groups. Legislative protections. Human rights must be enshrined in legislation. Australian governments should provide for comprehensive and inclusive anti-discrimination laws and seek to eliminate all remaining areas of legislative discrimination against sexual and gender minorities.
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INTRODUCTION In 2011, with generous funding from the City of Sydney, the NSW Gay & Lesbian Rights Lobby (GLRL) has conducted a consultation project titled Uncloseting Discrimination (the Consultation) to explore the disparate forms of discrimination experienced by sexual and gender minorities. As a gay and lesbian organisation, we do not have the authority or experience to speak for, or represent, the sex and gender diverse communities. However, the NSW GLRL used this small consultation process to also include discussions relevant to intersex, transgender and other sex and/or gender diverse persons. While the focus of the project was largely sexuality specific, issues regarding sex and/or gender diversity will be outlined in the report where appropriate. It is important to note this paper is not exhaustive, and merely canvasses some of the key issues discussed during the Consultation. While there are considerable areas of legislation, such as the Marriage Act 1961, that discriminate against same-sex couples, the discussion arising from the implications of the consultation focuses on anti-discrimination law specifically. Current federal anti- discrimination legislation prohibits discrimination on several grounds, including sex, race, ethnicity, marital status and disability. Despite this, there is no comprehensive Federal anti- discrimination protection for sexuality, sex and gender diverse people despite the fact that they continue to be subject to discrimination in many aspects of daily life. While each state and territory has anti-discrimination laws offering protection on the grounds of sexual orientation and sex and/or gender identity, these protections are highly disparate and terminology is inconsistent. A lack of Federal protection can affect an individuals access to healthcare, the provision of goods and services, accommodation and aged care services. Although the Australian Human Rights Commission (AHRC) can make recommendations in relation to complaints based on sexual orientation in employment, or discrimination by the Commonwealth or its agents, these are not enforceable. Intersex persons are not mentioned in any anti-discrimination legislative framework. In addition, a combination of exemptions and the fact that many Commonwealth laws override state laws means that sex, sexuality and gender diverse people are not afforded the same protections as virtually every other marginalised group in Australia. In focusing on places and spaces of discrimination, the consultation explored the specific areas of both personal and public life that people encounter discriminatory treatment. Generally, current anti-discrimination law is concerned with protecting people against discrimination in discrete or clearly delineated areas of public life.

However, the consultations revealed that the boundaries between the public and private, direct and indirect, and intentional and unintentional forms of discrimination are often blurred. Rather than think about these divisions in discrete terms, this consultation invited participants to think more contextually and intersectionally about the particularity of discrimination and how anti-discrimination protections can be developed to ensure adequate coverage for a diverse range of identities and characteristics. Specifically, this consultation highlighted the ways discrimination is experienced through several axes of identity, and is not confined to a discrete category. We conducted consultations that focused on the areas of: youth; ageing; multiculturalism; sex and gender diversity; disability; and faith and religion. The narratives of consultation participants are extracted in detail in the report.2 Reforms to this area of law are currently being considered as part of the consolidation of Commonwealth anti-discrimination laws and these consultations will inform our advocacy in this area reform.3
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Names have been changed to protect the confidentiality of participants. See the Commonwealth Attorney Generals Discussion Paper on the Consolidation of Commonwealth Anti-

Discrimination Laws (2011).

AIMS AND METHODOLOGY The Uncloseting Discrimination consultation aimed to: Identify the areas of life in which people experience discrimination, vilification and harassment; Outline current legislative protections for sexual and gender minorities and identify the gaps in legislative protection; Consider the idea of intersectional discrimination and its relevance to participants; and Make policy recommendations incorporating the consultation findings in relation to the consolidation of Commonwealth anti-discrimination laws. The consultation involved mixing qualitative analysis and empirical research (see Appendix 2). Our primary methodological approach was to characterise experiences of discrimination by hosting a series of forums on discrimination. In order to locate these experiences in a broader context of public policy and the legislation, we refer to current anti-discrimination legislation and policy. We also developed and distributed a short Anti-Discrimination Survey, which allowed individuals to make brief contributions about their own personal experiences of discrimination. These were distributed more broadly than the consultations, including other community events. While the qualitative information has been incorporated into the report, the quantitative information has been collated into graphs in Appendix 3. While we tried to engage as broad constituencies as possible, it is important to note that each workshop averaged about 20 participants and is not a representative sample of each population group. Where personal experiences gestured to concepts or issues outside the scope of the forum itself or were notably absent in the consultations themselves, other social science, policy and legal materials were consulted. Parliamentary submissions, Government inquiries, sociological reports and psychological studies have been detailed, where relevant, to enhance the analysis of the issues under discussion. It is also important to note that while the grant funding was specific to the City of Sydney area, many participants were not residents of the City of Sydney and had commuted from different parts of Sydney to take part. That said, the study does not seek to make universal claims about the experiences of LGBTI people, and encourages further consultation with these groups in policy making and service provision.

CONCEPTUAL FRAMEWORK Discrimination on the basis of sex, sexuality or gender diversity refers to treating someone, or someones associates, less favourably on the basis of their actual or perceived sex, sexuality, gender identity or gender expression. The concept is usually raised in the context of discrimination against people who are gay, lesbian or bisexual, transgender and intersex. Discrimination broadly includes harassment, vilification and general unfavourable treatment. Discrimination, however, is rarely specific to one particular identity status or attribute. The Australian Human Rights Commission has noted that discrimination is rarely based on one groundexperience is compounded by other characteristics such as gender, disability, age, religious beliefs and sexuality.4 Kimberle Crenshaw, a legal academic from the US, notes that in developing effective anti-discrimination legislation, identities and/or experiences must not be thought about in single category terms.5 In this respect, it is important for any new pieces of legislation to consider the intersectional or multidimensional nature of how an individual may experience discrimination. Following from concerns about consultation with recent law reform campaigns and the recent Australian Human Rights Commission consultation, a number of key stakeholders or intersections within the broad LGBTI rubric have been identified for targeted consultation. While there are numerous categories, for the confines of the consultation the following issues were the focus areas: youth; ageing; multiculturalism; sex and gender diversity; faith and religion; and disability. These groups were selected because they are typically invisible in consultations or broader policy discussions relating to same-sex law reform. It is important to note that due a lack of resources and relationships, we were unable to focus on these issues within Aboriginal and Torres Strait Islander communities. However, this will be an area for future work and partnership building.

4 5

Federal Discrimination Law 2005, Human Rights and Equal Opportunity Commission, p. 29. Kimberle Crenshaw, Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics (1989) The University of Chicago Legal Forum 139.

TERMINOLOGY The acronym LGBTI is used to describe the disparate lesbian, gay, bisexual, transgender and intersex populations. These terms should not be conflated as synonymous with sexuality and they must be understood in context. While terminology and labeling remains a contested space of identity and community politics, LGBTI is used as an acronym to highlight the intersections of discrimination between sexual and gender minorities. Bearing this in mind, the definitions given below are designed to provide guidance, rather than aim to be representative, in relation to diverse and complex LGBTI identities or people:6 The terms gay, lesbian and homosexual are used to describe individuals who identify as same-sex attracted, have intimate experiences or romantic relationships with persons of the same sex or gender. Queer as it relates to a persons sexual attraction is not confined to a particular sex, gender or sexual identity or identification, but is an umbrella term that encompasses non-heteronormative sexual and cultural differences. Gender identity is an umbrella term to refer to transgender, transsexual and other gender variant persons. Transgender persons may exhibit characteristics of a gender that may not necessarily correspond to their assigned sex. Transsexual is a more specific term often used to refer to individuals who have undergone some form of medical, hormonal or surgical intervention to affirm their chosen sex or gender identity. Gender identity also incorporates those who may not identify with any particular gender role or sex. This term is often contested, however, and some prefer the use of gender diversity to capture their gender expressions and other identifications which may not subscribe to a specific sense of identity. Intersex refers to individuals who possess non-binary specific sex characteristics often referred to as atypical chromosomal, hormonal or anatomical differences in sex. Recommendation 1: Sexual orientation should be used as a broad term when developing policy and legislation to recognise diverse sexualities and people who engage in lawful sexual practices. Terminology relating to sex and gender diversity should be developed in consultation with these communities when drafting policy and legislation.
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See National LGBTI Health Alliance, LGBTI, http://www.lgbthealth.org.au/LGBTI.

LGBTI HUMAN RIGHTS IN AN INTERNATIONAL CONTEXT In 2008, the Yogyakarta Principles were drafted by the International Commission of Jurists to promote international human rights obligations in relation to sexual orientation and gender identity. While these principles are not legally binding instruments, they act as persuasive interpretations of binding human rights treaties and relate to gay, lesbian and transgender people.7 It should be noted that the Yogyakarta Principles are not inclusive of many areas of concern to intersex people and further work on developing the principles is necessary. In the cases of Toonen v Australia8, Young v Australia9 and X. v Colombia10, the UN Human Rights Committee has clearly articulated that the International Covenant on Civil and Political Rights (ICCPR) prohibits discrimination on the basis of sexual orientation. Therefore the Commonwealth could rely on the external affairs power to implement a federal sexuality anti-discrimination law in accordance with its obligations under the ICCPR. In Toonen, the Committee found that Tasmanias criminal prohibition on male/male sexual activity breached the right to privacy (Article 17(1)) and right to non-discrimination (Article 2(1)) under the ICCPR. Eight years later, in Young, the Committee found that the Commonwealths refusal to provide an entitlement to a member of a same-sex couple amounted to a violation of their right to equal protection under the law (Article 26). While in Toonen v Australia the Committee concluded that the basis of discrimination on grounds of sexuality was in the term sex, in Young v Australia the Committee found that that basis of that discrimination was in other status. The Committee decided in the case of X. v Columbia that the decision in Toonen that sexuality discrimination could be included in the category of sex was incorrect, and that rather it is on the ground of other status that sexual minorities are protected from discrimination.11 On 15 June 2011 the Human Rights Council passed a historic resolution expressing grave concerns at the human rights violations committed globally against individuals based on their sexual orientation and gender identity, referencing the principles of the UDHR, the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).12
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International Commission of Jurists, The Yogyakarta Principles: Principles On The Application Of Human Rights Law In Relation To Sexual Orientation and Gender Identity (2007), http://www.yogyakartaprinciples.org/principles_en.htm. 8 Toonen v Australia (488/92) UN Doc. CCPR/C/50/D/488/92. 9 Young v Australia (941/2000) UN Doc. CCPR/C/78/D/941/2000. 10 X. v Colombia, UNHRC, 2007, Unreported. 11 Ibid. 12 th Human Rights Council, 17 Session, Agenda Item 8, Human Rights, sexual orientation and gender identity, 15 June 2011, Un Doc. A/HRC/17/L.9/Rev.1.

ANTI-DISCRIMINATION PROTECTIONS IN AUSTRALIA Australia is the only Western liberal democracy without some form of human rights charter. Despite this, Australia is a signatory to various human rights treaties.13 While this is promising, in the Australian legislative context international treaty law is not automatically incorporated into Australia; it must be transformed by domestic legislation.14 The Federal Government has authority to enact legislation in relation to international treaties that Australia is a signatory to under the external affairs power of the Constitution (s 51(xxix)).15 Without municipal incorporation, however, international human rights law has only limited persuasive value in judicial rulings.16 Australia is a signatory to a number of treaties that indirectly provide protections against discrimination on the basis of sexuality, either under sex or other status categories.17 These include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC). The Discrimination (Employment and Occupation) Convention (ILO 111) provides that countries must ensure that they eliminate employment-related discrimination on the grounds of: race; colour; sex; religion; political opinion; national extraction; and social origin. The Convention also allows countries to add additional criteria, with Australia adding the criteria of sexual preference in 1989.18 These treaties do not give rise to legal obligations in Australian law until Australia enshrines the protections in domestic legislation. A number of Australian laws have been introduced to incorporate elements of the above treaties, but treaty obligations have not been incorporated in their entirety. Following a National Human Rights Consultation in 2009, the Australian Government refused to introduce a charter, but has committed to an Australian Human Rights Framework to promote human rights instead.

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These include the Convention Against Torture, International Covenant on Civil and Political Rights, Convention on the Elimination of all forms of Discrimination Against Women, Convention on the Elimination of Racial Discrimination, International Covenant on Economic, Social and Cultural Rights and Convention on the Rights of the Child. 14 Chow Hung Ching v The King (1948) 77 CLR 449. 15 The external affairs power was used to enact the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth). Department of Foreign Affairs and Trade, Treaties and Treaty Making, http://www.dfat.gov.au/treaties/making/making3.html. Viewed 5 November 2007. 16 Polyukovich v The Commonwealth (1991) 172 CLR 501. 17 Recent international jurisprudence suggests that other status is the correct approach. See X v. Colombia. UNHRC, 2007, Unreported. 18 The Human Rights and Equal Opportunity Regulations state that for the purposes of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), discrimination includes discrimination on the grounds of sexual preference. See Human Rights and Equal Opportunity Commission Regulations 1989 (Cth), No 407 4(a)(ix).

Attempts to promote oversight of human rights compliance is evident in the recent establishment of the Parliamentary Joint Committee on Human Rights and the powers of the existing Human Rights Commission, both of which can scrutinise and hold Parliament accountable for the consistency of national laws with human rights principles.19 There is no anti-discrimination act at a federal level that covers discrimination on the basis of sexuality, gender identity and sex characteristics (or intersex status). Every state and territory anti-discrimination act covers discrimination on the basis of sexuality, sexual orientation, or homosexuality, alongside transsexuality or gender identity (the terminology varies across state legislation). Some states also cover lawful sexual activity. Federal industrial law also prohibits unfair dismissal and adverse action on the basis of a persons sexual preference, however sex and/or gender identity is a notable omission.20 Intersex people remain invisible in both Commonwealth and state anti-discrimination laws. There are significant gaps and deficiencies in the state and territory anti-discrimination legislation. Exemptions within the state and territory acts allow discrimination on the basis of sexuality in some areas. For example, there are exemptions for private schools, religious organisations, charitable institutions, and employment involving children. There is limited protection against discrimination on the grounds of sexual preference in employment under Divisions 2, 3 and 4 of Part II of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). AHRC can inquire into complaints of discrimination by the Commonwealth or its agents or of discrimination in employment and can make recommendations to Parliament; however, the recommendations are not enforceable. In addition, s 109 of the Australian Constitution means that any state laws that are inconsistent with federal laws are inoperative to the extent of the inconsistency. Inconsistent coverage between states and between states and the Commonwealth produces anomalous results and creates uncertainty around protection. The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) empowers AHRC to monitor whether Australia complies with its obligations under ICCPR, ILO 111 and CRC.21 Recommendation 2: Federal legislation should incorporate the numerous human rights recommendations that relate to sexual orientation in the Yogyakarta Principles. Incorporation of recommendations in relation to sex and gender diversity should be developed in consultation with these communities.
19 20

Human Rights (Parliamentary Scrutiny) Bill 2010 (Cth) and Australian Human Rights Commission Act 1989 (Cth). Fair Work Act 2009 (Cth), ss 153, 186(4), 194, 195, 342, 351, 772(1)(f). 21 Human Rights and Equal Opportunity Commission, Same-Sex: Same Entitlements, National Inquiry into Discrimination Against People in Same-Sex Relationships: Financial and Work-related Entitlements and Benefits, May 2007, p. 36.

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MULTICULTURALISM Sexual and gender minorities from multicultural communities negotiate their culture and ethnicity in distinctive ways when it comes to their sexual orientation or gender identity. Given the breadth of such communities, it is important that any focus on discrimination relating to sexual orientation or gender identity also address the stigma and marginalisation these individuals experience in relation to race, ethnicity and culture. Multiculturalism Australia is often characterised as a diverse and multicultural nation. According to the Australian Bureau of Statistics, 24 percent of Australia's population was born overseas, while a further 20 percent of the population had at least one parent who was born overseas. In addition to this, 2.4 percent of the population identify as Aboriginal or Torres Strait Islander peoples.22 Australia also hosts a significant number of international students each year.23 The Whitlam Labor Government introduced multiculturalism as a feature of government policy in 1972. During this period the White Australia Policy24 was dismantled and Australias immigration system was opened to people from all cultural backgrounds. In February 2011, the Federal Government released The People of Australia Australias Multicultural Policy, which reaffirms the importance of cultural diversity and social cohesion to Australia. The policy gestures to the Governments commitment to a just, inclusive and socially cohesive society where everyone can participate in the opportunities that Australia offers25, and states that the Government will act to promote understanding and acceptance while responding to expressions of intolerance and discrimination with strength, and where necessary, with the force of the law.26 In recognising the contribution made by diverse communities in Australia, Australias Multicultural policy must extend to LGBTI people from culturally and linguistically diverse backgrounds. Specifically, these Australians often face unique challenges when negotiating their cultural identity and sexuality, especially when considered in the context of immigration.
22 23

Australian Bureau of Statistics, Cultural Diversity Overview in A Picture of the Nation, 2006, pp. 34-44. Department of Immigration and Citizenship, Student Visa Program Quarterly Report (2011), http://www.immi.gov.au/media/statistics/study/_pdf/student-visa-program-report-2011-06-30.pdf. 24 Department of Immigration and Citizenship, Factsheet Abolition of the White Australia Policy (2009), http://www.immi.gov.au/media/fact-sheets/08abolition.htm 25 Department of Immigration and Citizenship, The People of Australia Australias Multicultural Policy (2011), p. 2. 26 Ibid.

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Racism in Australia Racism and race politics continues to underpin national politics in Australia. In recent times, the Cronulla Riots and the spate of attacks upon Indian international students have renewed discussions in the media about racism in Australia. A recent study explored the attitudes of Australians towards multiculturalism. The Challenging Racism (2011) project found that while most Australians were accepting of multiculturalism, approximately 10 percent of Australians held deeply racist views.27 These attitudes were contingent upon location, education and cultural background.28 Participants in the consultation reflected upon racism in Australia, oscillating between the extremes of feeling either invisible or hyper-visible. In discussing invisibility, Jai, NSW, linked this to a lack of positive role models for multicultural Australians in the media, stating: The only time we talk about multicultural issues is when Indigenous people are dying ten years younger or refugees are coming in the boats. There are no positive representations of coloured people and even less so queer coloured people.29 Conversely, participants spoke about also being hyper-visible that their racial and cultural differences set them apart from white Australian society and made them stand out. Many noted that media representations of multicultural communities were often stereotypical and demeaning. Homophobia within multicultural communities The process of coming out is fraught for those in multicultural communities. Some LGBTI people face rejection from friends and family on the basis of their sexual orientation or gender identity. Unfortunately, for people from culturally diverse backgrounds dislocation from family or community life is exacerbated by the risk of losing important connections to language and cultural heritage, as well as familial support networks. In a recent City of Sydney report Sharing Our Stories (2010), a number of participants identified that in light of their unique cultural position, people from culturally and linguistically diverse backgrounds may be more likely to keep their sexuality hidden.30

27

University of Western Sydney, Challenging Racism: The Anti-Racism Project (2011), http://www.uws.edu.au/__data/assets/pdf_file/0007/173635/NationalLevelFindingsV1.pdf 28 James Forrest and Kevin Dunn, Attitudes to Multicultural Values in Diverse Spaces in Australia's Immigrant Cities (2010) 14.1 Space and Polity 81. 29 Uncloseting Discrimination: Multiculturalism Consultation, Surry Hills Community Centre, 11th July 2011. 30 Pride in Colour, Sharing Our Stories: A Forum Celebrating Sexuality, Sex and Gender Diversity in Multicultural Communities (2010), http://whatson.cityofsydney.nsw.gov.au/events/9179-sharing-our-stories-a-forum-celebrating-sexuality-sex-and- gender-diversity-in-multicultural-communities.

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For those that do come out to their family, the news of their sexuality is often met with silence a refusal to acknowledge that the person is gay, lesbian or bisexual.31 At times, the oppositional construction of sexuality and culture coerce many LGBTI people from culturally diverse backgrounds to embrace one element of their identity, while refusing the other. This problem is articulated in communities that assume that LGBTI people do not exist within their particular cultural group or ethnicity. Sien, NSW, reports: I was on a board for Cambodian community organisation and we were discussing sponsoring a Mardi Gras float. Someone said, We dont have any gays in our community. I decided to come out at that meeting and it caused a big upset.32 When facing discrimination within their own ethnic or cultural communities, LGBTI people may avoid lodging a complaint with the Anti-Discrimination Board out of fear that they will further malign and disrupt an already marginalised community. Lack of culturally appropriate resources The tension between LGBTI people and their multicultural communities is linked in part to a lack of culturally appropriate resources for families. Many responses indicated a lack of resources in public services for culturally and linguistically diverse people. For example, Xi- Wang, NSW, says: If my parents dont speak English and I want to be able to access resources for them in Cantonese, or to speak to a counsellor, I dont know where the resources are available.33 In addition to this, those that have difficulty sharing their identity or orientation with family may struggle to find acceptance in the gay community, where racism can be just as prevalent as it is in the wider population. This had lead to the formation of culturally based gay and lesbian communities. These groups offer support and help to counter some of the problems that exist for multicultural LGBTI Australians.
31

Rosemary Mann, Philomena Horsley, Mark Saunders, Viki Briggs, Anne Mitchell, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 1. 32 Uncloseting Discrimination: Multiculturalism Consultation, Surry Hills Community Centre, 11th July 2011. 33 Ibid.

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Refugees and Asylum Seekers Homosexuality remains illegal in 80 countries, and in some countries is punishable by the death penalty.34 Many LGBTI people flee these countries, seeking protection in Australia. The Convention Relating to the Status of Refugees 1951 outlines that asylum seekers must demonstrate a well-founded fear of persecution on the basis of a protected ground to be considered a refugee. The protected categories include ethnicity, nationality, religion, social group or political opinion. In Australian law, sexuality, or specifically "homosexuality", has been considered a protected identity under the category of "particular social group" since Moratos case in the Federal Court in 1992.35 Historically, claims made by sexual minorities have been met with resistance from decision- makers, who have argued that persecution can be avoided if the asylum seeker chooses to remain discreet. Stereotypes underlying the need for discretion are predicated on the assumption that gay men are excessively promiscuous, often seeking sex in public, and dangerous to the mores of society. These social imaginaries characterise any form of public affection as indicative of overt sexual activity that should be rightly condemned. For example, a 1999 case concerned a Chinese asylum seeker who was beaten and detained for three months for kissing another man in public. The Federal Court sought to dismiss the claim on the basis that the applicant lacked appropriate discretion with respect to Chinese cultural norms and ought to have engaged in his display of homosexuality privately.36 In December 2003, the High Court of Australia became the first appellate court to review an application for refugee status based on sexuality and rejected the notion that applicants could co-operate in their own protection by concealing their sexuality in their home country.37 However, since then a number of applications have been rejected, as refugee decision makers cast doubt upon the sexuality of the applicants, effectively judging them in relation to an Anglophone understanding of apparent gayness.38 Many LGBTI people arrive in Australia as refugee children, and grow up to realise they are gay, lesbian, bisexual or sex and/or gender diverse. While the persecution they fled from was not based upon their sexuality or gender identity, their experience as a refugee is undoubtedly an integral part of their identity as Australians. Jerome, NSW, reflects:
34

Daniel Ottoson (ILGA), State-sponsored Homophobia: A World Survey of Laws Prohibiting Same Sex Activity Between Consenting Adults (2009), p. 3. 35 Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401. 36 Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496. 37 S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473. 38 Jenni Millbank, From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13:2-3 The International Journal of Human Rights 391.

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My family were refugees for six years, and people often ask me if Ill go back to Croatia, but I feel I have healed. It hurt me and its in the past, but its done I feel that its their loss. That country didnt want me, so Ive found another great country.39 Sien, NSW, adds: Being a refugee is controversial in Australian politics, you dont disclose it until people say something ignorant like send the boats back.40 Taken together, the above cases reveal a lack of consistency and often paradoxical reasoning when it comes to assessing the claim for asylum made by a sexual minority. Moreover, judging claims against a mythic or stereotypical persona privileges consumerism or promiscuity as the authentic markers of non-heterosexuality. Such abstract imaginaries obscure how asylum seekers negotiate their intimate lives and sexualities in a specific cultural and historical context. Ultimately, illogical or unreasonable decision-making on the part of administrators can be attributed to parochial understandings of sexuality and a lack of empathy. While judicial review is available for such decisions, courts are limited to considering jurisdictional questions or errors of law, rather than determining the merits of the decision. Reforms to administrative decision-making must then focus on eroding stereotypes and embracing culturally specific merit assessment guidelines, to avoid dismissing the genuine risks faced by so many gay and lesbian refugees. Recommendation 3: The Department of Immigration and Citizenship to develop comprehensive sexuality guidelines and training modules for decision-makers. Guidelines on sex and gender diversity should be developed in consultation with those communities.
39 40

See above, n33. Ibid. 15

Aboriginal and Torres Strait Islander Australians Unfortunately, the consultation did not have the scope or appropriate networks to conduct a consultation with Aboriginal and Torres Strait Islander Australians. However, it is important to flag some important issues in this paper. Australias multicultural policy is supported by the Governments engagement with the nations Aboriginal and Torres Strait Islander population.41 The experience of coming out can be a diverse one for Indigenous gay men and lesbians. The Swimming Upstream (2006) report explored the experience of Indigenous gay, lesbian and bisexual people. The role of family and community was identified as a central component of Aboriginal life. Some participants in the study reported a level of acceptance from their family, tied to hopes for family survival. One participant in the Swimming Upstream study notes: If you have a son or daughter who is gay or lesbian, well, at least theyre not drunk, or drugged or dead.42 Other respondents suggested that rather than an experience of rejection or exclusion, their coming out was met with silence. Health services are another area where Indigenous peoples who identify as LGBTI may feel discriminated against. Participants in Swimming Upstream identified a difference between Aboriginal Medical Services (AMS) and gay and lesbian specific health services. While AMS are friendly for Indigenous people, they are run by an older, more Christian generation of Kooris43, and this conservative culture may not be so welcoming for gays and lesbians. Conversely, gay and lesbian health services may be inviting, but many Indigenous people do not feel welcome or included there. Recommendation 4: Much further consultation is needed with sex, sexuality and gender diverse people living in Aboriginal communities.
41

Department of Immigration and Citizenship, The People of Australia Australias Multicultural Policy, 2011, p. 2. 42 See above, n31, p. 35. 43 Ibid.

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Race and Equality Before the Law The Federal Racial Discrimination Act 1975 (Cth) makes unlawful any act that discriminates on the basis of race, colour, descent or national or ethnic origin.44 While intersectional forms of discrimination remain obscured under the framework of discrimination law, the RDA also states that where someone is discriminated against for two or more reasons and one of those is racial discrimination, then the act is taken to be for that reason, regardless of whether that was the dominant reason for the discrimination.45 Section 10 of the RDA provides a general right to equality before the law, implementing Australias obligations under Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.46 The purpose of s 10 is not to make acts, omissions or practices of individuals unlawful, but rather is concerned with the operation and effect of laws.47 To make a successful claim under s 10, the applicant must be able to show that: (d) by reason of a law of the Commonwealth or of a State or Territory (or a provision of the law); (e) persons of a particular race, colour or national or ethnic origin: i. do not enjoy a right that is enjoyed by persons of another race; or ii. enjoy a right to a more limited extent than persons of another race.48 Accordingly, the applicant must be able to establish that the discrimination complained of arises by reason of the terms or practical effects of a statutory provision.49 However, in assessing whether particular legislation limits the enjoyment of the rights of a particular racial group, the courts have acknowledged that the enjoyment of rights in most cases is not absolute, but may involve a balancing against competing rights and interests. In the case of Bropho v Western Australia (2008), the Federal Court held that, in applying s 10, it is necessary to recognise that some rights, such as property rights, are not absolute in their nature. Accordingly, actions that impact upon the ownership of property may not necessarily invalidly diminish the right to ownership of property.
44 45

Racial Discrimination Act 1975 (Cth), s9. Racial Discrimination Act 1975 (Cth), s18. 46 Convention on the Elimination of All Forms of Racial Discrimination (1969), Article 5. 47 Mabo v Queensland (1988) 166 CLR 186, 230 (Deane J). 48 Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ). See further GLRL, Federal Discrimination Law (2008), 35-6. 49 See Gerhardy v Brown (1985) 159 CLR 70, 81 (Gibbs CJ), 92-93 (Mason J) and 119 (Brennan J); Mabo v Queensland (1988) 166 CLR 186, 198 (Mason CJ), 204 (Wilson J), 216 (Brennan, Toohey and Gaudron JJ) and 242 (Dawson J); Western Australia v Ward (2002) 213 CLR 1, 98 [103] and 107 [126] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bropho v Western Australia [2008] FCAFC 100, [73]; Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ); Bropho v Western Australia [2008] FCAFC 100, [64], [73].

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The Court held that no invalid diminution of property rights occur where the State acts in order to achieve a legitimate and non-discriminatory public goal.50 The Court noted, however, that its reasoning was not intended to imply that basic human rights protected by the (RDA) can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory.51 Legislation prohibiting discrimination on the grounds of sexual orientation, gender identity and expression and intersex and sex identity should include a right to equality before the law to ensure the implementation of Australias international obligations under article 26 of the ICCPR, which guarantees equality before the law and the right to non-discrimination. Immigration Law Since 2009, all couples are treated equally in terms of immigration law and other areas of Federal law. Unfortunately, however, the Australian government does not recognise same- sex marriages, including those legally solemnised overseas, although these were counted in the 2011 ABS Census data.52 The Australian Government has just overturned a discriminatory ban on providing documents for same-sex couples marrying in foreign countries where same-sex marriage has been legalised. Many foreign countries require a Certificate of Non-Impediment to Marriage, which proves that the bearer is not married in their home country. In 2009, the Australian Senate Legal and Constitutional Affairs Committee inquiry recommended that the Government issue these certificates to same-sex couples as they do for heterosexual couples, stating that a decision by a sovereign nation to allow marriage between a couple of the same sex should be a matter for that nation, and not a matter against which Australia should throw up bureaucratic barriers.53 In February 2012, the Government overturned this discriminatory practice, which came once again to public attention with the legalization of same-sex marriage in New York and the changes to the Australian Labor Party platform to support marriage equality.54
50 51

Bropho v Western Australia [83], see generally [80]-[83]. Id [82]. In Bropho, the Reserves (Reserve 43131) Act 2003 (WA) (Reserves Act) and actions taken under it were said to have limited the enjoyment of the property rights of the Aboriginal residents of the Swan Valley Nyungah Community (Reserve 43131) by, in effect, closing that community. The Court held that any interference with the property rights of residents was effected in accordance with a legitimate public purpose, namely to protect the safety and welfare of residents of the community. It therefore did not invalidly diminish the property rights of the residents. 52 Melissa Lahoud, Victory for gay couples as Census finally recognises same-sex marriages, The Sydney Morning Herald, 6 August 2011. 53 Senate Constitutional and Legal Affairs Committee, Marriage Equality Amendment Bill 2009 Inquiry, p. 39, http://www.aph.gov.au/senate/committee/legcon_ctte/marriage_equality/report/report.pdf 54 Nova FM, Gillard stops Aussies from marrying in New York, 8 July 2011, http://www.novafm.com.au/nova969/article_gillard-stops-aussies-from-marrying-in-new-york_109267

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Discrimination complaints Concerns were raised over lodging claims with the Anti-Discrimination Board. Geoffrey, NSW, had represented people in lodging a complaint, and highlighted the problems associated with making a claim based on only one aspect of a persons identity. He suggests that: You know the core of the problem is homophobia but certain times you need to go via other mechanisms in employment law in order to get some kind of compensation. It definitely doesnt alleviate the suffering of that person. Jai, NSW reflects: Its difficult when the experience of discrimination is related to your race and your sexuality. Often people arent experienced in dealing with that kind of discrimination. I think we need to ensure that the new legislation allows for a consideration of complaint across all the different characteristics in an integrated way and trying to make sure that the people at the commission are well trained and have the capacity to deal with it.55 Recommendation 5: Federal and state government departments must develop, in partnership with community organisations, culturally appropriate services and resources for sexual minorities in multicultural communities. Resources and service provision in relation to sex and gender diverse communities should be developed in consultation with these communities.
55

See above, n33.

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INTERSEX, TRANSGENDER, SEX AND/OR GENDER DIVERSITY Policy and legislative issues affecting intersex, transgender, transsexual and other sex and/or gender diverse persons can be sidelined in public policy discussions that feature prominently on gay and lesbian issues. The GLRL does not lobby on behalf of such communities, and urges further consultation with these groups. However, while these are distinctive groups with unique areas of discrimination, there are some important connections between the discrimination faced by sex, sexuality and gender diverse people. Specifically, intersex people must be included in human rights legislation and public policy, and not subsumed under the broad category of gender identity or remain confined to medical discourses. Finding varied participants for this consultation proved challenging, and we would like to acknowledge that we had very few sex and/or gender diverse participants in the consultation workshop, but we did receive comments and feedback from other sources. Sex and gender diversity is an extremely broad and complex term. What is important to note is that no one term adequately captures the experiences of those who are subject to these labels. In broad terms, sex and gender diversity is used to include those whose gender identity does not exclusively match their biological sex (i.e. transgender) or those who have physical sex differences that are not exclusively male or female (i.e. intersex). OII Australia identifies that intersex is not the same issue as transsexuality, although the current medical approach to gender makes it so for some.56 Some sex and gender diverse persons identify at heterosexual, and chose to not to be involved with the LGBTI community. However, even though these claims are not necessarily coterminous with those of sexual minorities, they still exist as a minority group that is disadvantaged by legal and social discrimination. This section only canvasses a few issues, and further consultation with specific transgender, intersex, and other sex and/or gender identity related advocacy groups is essential to any proposed reforms. Identity Documentation In 2008-9, the Australian Human Rights Commission undertook the Sex Files (2009) consultation to discuss issues relating to recognition and documentation of sex and gender minorities. The consultation identified that one area in which individuals experience difficulties and legal discrimination is identification records, as the current system in Australian state legislation imposes significant limitations on the ability to change ones sex or gender on such documents.57

56 57

OII Australia, About Us, http://oiiaustralia.com/. Australian Human Rights Commission, Sex Files: The Legal Recognition of Sex in Documents and Government Records (2009), p. 22.

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One such limitation is the requirement of having undergone sex affirmation surgery in order to apply to have their recognised sex changed on their birth certificate.58 However, Medicare does not cover these surgeries and some people may not be able to afford them.59 Claiming appropriate forms of citizenship for gender minorities becomes part of a pathologising policy, by suggesting that gender identity is only authentic by those who undertake surgery (such as transitioning) to confirm their identity. Effectively, this kind of policy rationale is underpinned by a belief that gender is confined to genital anatomy rather than to the way individuals identify and present themselves (in physical, psychological and social ways).60 As one anonymous contributor to the Sex Files worded the situation as follows: Why havent I had surgery? Because it pleases the bureaucrats. The idea I must have surgery to satisfy them is absurd. I have successfully been living in my gender role for a decade now.61 Moreover, there can be significant costs and difficulties obtaining sufficient medical evidence to verify their surgery.62 This contributes to an excessive focus on the genital makeup of a person in recognising their gender, rather then the gender they openly identify with. Another problem in categorising documents for sex and gender diverse people is the inability for individuals to be identified as a gender that is neither male nor female. While some Birth Registrars are able to mark birth certificates as indeterminate in gender, this mainly occurs in situations such as stillborn babies where the genital makeup is unclear.63 Even if an individual is able to change or remove their gender from their cardinal documents (birth certificate, passport, etc.), most other agencies are unable to identify gender as anything outside the male/female binary.64 Similarly to the requirements of surgery, the inability to recognise alternative options for gender/sex reinforces the emphasis on medical discourses, rather than the gender an individual openly identifies with. Recently, the Department of Foreign Affairs and Trade (DFAT) made changes to its passport policy to allow intersex and transgender persons the ability to amend their passports without the need for surgery. In addition, those who did not wish to subscribe to either male or female could opt for an indeterminate identification (X).65
58 59

Id, p. 31. Ibid. 60 Id, p. 32. 61 Ibid. 62 Ibid. 63 Australian Human Rights Commission, Sex Files: The Legal Recognition of Sex in Documents and Government Records (2009), pp. 33-34. 64 Id, p. 34. 65 Department of Foreign Affairs and Trade, Sex (2011), http://www.dfat.gov.au/publications/passports/Policy/Identity/Sex/index.htm

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Coercive surgeries Sex and gender diverse people under the age of 18 have to negotiate a complex legal terrain when it comes to the recognition of their gender. While the circumstances of young people undergoing sexual affirmation surgery is extremely rare, a greater awareness in issues around sex and gender diversity has resulted in many young people identifying with a gender that does not match the one on their birth certificate. 66 The requirements of surgery to amend the official gender on their birth certificate effectively exclude minors and youth who are unable to access these services, even if they had a desire to do so (which some do not).67 In contradistinction to adult transgender or gender diverse persons and the recommendations articulated in the Sex Files, the systemic reliance on non-consensual surgeries on intersex infants to correct ambiguous genitalia is of significant concern. The Convention on the Rights of the Child includes articles that have been cited as particularly relevant to transgendered, intersex, and otherwise sexually and gender diverse youth, including the consideration of the best interests of the child, freedoms of thought and expression, and the preservation of identity.68 Laws that seek to erase or correct sexual difference through non-consensual surgical procedures are not in a childs best interest, and can be understood as a systemic violation of their human rights. OII affirms that the true sex of an intersex child is determined by their own inner psychological perceptions and that the right of individual intersex persons to affirm their own sex without medical or governmental interference should be a basic human right.69 Protecting gender histories Outing ones gender history or having to disclose personal information about a persons past identity can pose a serious risk of physical harm and violence, and this threat of discrimination is more prevalent when sex and gender people cannot easily change the official gender on all documents so that they match their expressed gender.70

66

Australian Human Rights Commission, Sex Files: The Legal Recognition of Sex in Documents and Government Records (2009), p. 33. 67 Ibid. 68 Australian Human Rights Commission, Sex and Gender Diversity Issues Paper (2008), p.4. 69 OII Australia, About Us, http://oiiaustralia.com/. 70 Australian Human Rights Commission, Sex Files: The Legal Recognition of Sex in Documents and Government Records (2009), p. 34.

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Any reforms to improve the legal recognition of sex identity include the broadening of the definition of sex affirmation treatment, creating a streamlined and user-friendly system that allows sex identity to be changed more effectively, the availability of a third or neutral gender, the relaxing of some of the evidentiary requirements, and the consideration of the special needs of young sex and gender diverse people.71 These changes will seek to recognise the human rights of sex and gender diverse people and allow them to more comfortably live their lives in their chosen gender identity without excessive institutional discrimination. Recommendation 6: The Federal Government must engage in further consultation with intersex, transgender and other sex and gender diverse communities to improve access to services and to strengthen anti-discrimination protections.
71

Id, pp. 37-40.

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AGEING Ageing issues are of critical importance to the Australian community with an expanding ageing population. In the LGBTI community in particular, the effect of legislative reform is often invisible in relation to older people, such as reforms to welfare and pensions. Rapid legal transformation in the recognition of same-sex relationships in the past decade has had a particularly disadvantageous effect on older people who have lived their lives in the closet. Legal recognition has coerced older people into coming out to public institutions, and increased visibility has led to considerable discrimination. In addition, significant concerns have been raised around access to healthcare and aged care services. Ageing Population The consultation heard numerous concerns within the LGBTI community in regards to elder people and ageing. Among the group of 20 participants, there was a general consensus that the issue of aged care should be a very important part of the LGBTI agenda. It was a well- known fact that Australias population is ageing, with the proportion of persons over 65 years estimated to increase from 13 percent in 2007 to approximately 25 percent in 2051. Since 8 percent of the Australian population currently identifies as LGBTI, there will be approximately half a million LGBTI persons over the age of 65 by 2051.72 Participants also expressed concern about medical services and health issues, both in regards to ageing and in a broader, more general sense. Themes of disclosure of sexuality, and recognition of both relationships and the specific needs of LGBTI individuals, were very prominent throughout the discussion. Health Care Discrimination in the setting of medical services and health care is a concern for all LGBTI people. However, the increased levels at which health problems affect the aged population, as well as specific LGBTI-related health concerns, makes these kinds of discrimination particularly problematic for LGBTI elders. One woman in the consultation shared experiences where her same-sex partner was completely ignored during a specialist appointment, with the doctor failing to acknowledge the partner or involve her in the conversation in any way. Another situation occurred when emergency services refused to let her accompany her partner into the hospitals emergency ward, and was met with hostility and aggression when she protested. These cases are examples of homophobic discrimination both in an institutional policy and as a personal attitude affecting professional behaviour.
72

GLBTI Retirement Association Inc., We dont have any of those people here: Retirement accommodation and Aged Care Issues for Non-Heterosexual Populations (2010), p. 2.

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Research confirms that discrimination in health care is ongoing, with the Victorian Gay and Lesbian Rights Lobby reporting that 23 percent of LGBTI Victorians have experienced discrimination in a medical setting.73 This corroborates the research of Dr Jo Harrison (2010) who notes that LGBTI people often avoid or delay seeking medical services for fear of this discrimination, which affects the quality of their treatment and can often allow problems to escalate in seriousness and become more costly, financially or otherwise.74 There are also LGBTI specific issues such as mental health and suicide that can go unaddressed, and transgendered people can often feel too intimidated to seek medical advice on conditions related to their original gender, such as osteoporosis in women or prostate cancer in men75. Home and Community Care Many LGBTI recipients of home care services (another pertinent issue for elders) also fear discrimination or persecution based on their sexuality. This has lead to a phenomenon of returning to the closet or de-gaying themselves and their dwelling in order to evade actual, or perceived, discrimination or harassment. The consultation heard a story of a lesbian woman with a disability who required home services to help with some aspects of looking after her child. She felt that the art and decorations throughout her house received a negative interpretation from her largely religious home care workers, who even attempted to take the irreligious womans child to church with them. Perceptions of the existence of an institutionalised homophobia coerce many LGBTI people to conceal their sexual orientation or gender identity from service providers, and to consistently maintain such a faade of heterosexuality can have mental health implications such as immense stress and anxiety.76 The systemic discrimination in the cultural history of the LGBTI community affects many elders today, resulting in some special needs that are seen as LGBTI-specific.77 Both views expressed in the consultation and scholarly opinions suggest that the special needs of the LGBTI aged community are not adequately addressed, and this fear-driven invisibility is a major barrier to those needs being recognised and dealt with. Debates over whether this perceived discrimination is more common than its actual occurrence led to suggestions that while the LGBTI community should be educated that these services are not all homophobic, it is the responsibility of individual organisations to state that they are LGBTI-friendly and sensitive to specific LGBTI needs.

73 74

Id, p. 36. Jo Harrison, Submission to the Inquiry into Caring for Older Australians Productivity Commission (2010), pp. 3- 4. 75 Corey Irlam and Jo Harrison, Diversity Futures: The Removal of Same-Sex Discrimination: Implications for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Aged Care (2010), p. 44. 76 See above, n73, p. 33. 77 See above, n75, p. 19.

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In the specific context of aged care, relationship recognition is also becoming a significant issue. The heteronormative assumptions that underpin most aged care facilities result in words such as husband, wife or spouse being used, which are in a category of non- inclusive language for LGBTI people. A male elder expressed concerns that he had no legal next of kin, and was unsure if his partner of seventeen years would actually be recognised in the event that enduring guardianship was required, should he be incapable of making his own decisions. Another participant who worked for the aged care sector noted that they had observed overt discrimination against same-sex couples in such circumstances. Since the Australian government does not recognise same-sex relationships through marriage78, LGBTI people are effectively left with lower levels of practical protection than married, opposite-sex couples, which can have negative mental health impacts as well as problematic legal consequences. Jo Harrison and Corey Irlam in Diversity Futures (2010) identify the updating of all paperwork and procedures in aged care, so all forms are appropriate and unambiguous as a potential solution to this problem.79 The suggestion is only one aspect of an overall aim of delivering more appropriate and sensitive responses to LGBTI elders. An industry representative who was present at the consultation highlighted that there are options when entering aged care to nominate a person responsible for your affairs, which can be completely removed from biological family or next of kin. It is not an option widely known and is not advertised by the government, despite the concerns of many LGBTI elders and their requests for greater recognition of their non-biological families of choice.80 Ageism in Aged Care The issue of elder invisibility is not confined to same-sex relationships. Ageism often frames elders as asexual, and the expression of sexual identity of LGBTI elders becomes lost in the heteronormative framework of aged care. This invisibility is commonly justified as a respect for privacy81, and Jo Harrison cites a broad range of research indicating that many aged care facilities are unaware and uneducated as to [the] special needs of elder LGBTI people.82

78 79

Marriage Act 1961 (Cth), s88EA. See above, n75, p. 8. 80 Productivity Commission Inquiry Report into the Caring of Older Australians, Catering for diversity (2010), p. 254. 81 See above, n75, p. 16. 82 See above, n80, p. 254.

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The consultation highlighted that while some elders were in fact aware of their rights, many reported feeling too intimidated too actually assert them. As elder Rob, NSW said: [The] industry needs to be brought up to speed with reality. Whether I am gay or straight, sexuality is not talked about in aged care.83 Such claims are supported by Harrison who identifies a nearly complete omission of LGBTI issues in aged care policy and in the education and training processes.84 As the Baby Boomer generation nears retirement and aged care, the number of openly gay LGBTI elders is expected to increase significantly85 and the industry will be forced to introduce more substantial policies for LGBTI issues to accommodate the growing minority, given that difficulties in having their needs and preferences recognised is already a commonly reported problem among LGBTI elders.86 Exemptions and Exclusions Another major point of concern for LGBTI elders was the fact that many aged care facilities are operated by faith-based organisations. The conception that religion and homosexuality have irreconcilable differences is the source of anxiety for LGBTI people requiring aged care, and members of the consultation expressed hesitance about identifying as LGBTI in such an environment. Religious organisations have the capacity to rely on automatic exemptions under anti- discrimination law, allowing them to refuse services based on contradictions to religious beliefs87. While these exemptions are obviously optional, and many organisations do not use them, the fact that they still exist is a loophole that many LGBTI elders still find unsettling. An aged care industry worker present at the consultation offered statistics that only 28 percent of aged care facilities are faith-based, and an opinion that many of these organisations operate much more like businesses than religious groups. While these exemptions still exist it was viewed as the organisations responsibility to guarantee that they would not be used, and actively promote the LGBTI-friendliness of their policies. Essentially, the problem for LGBTI elders is that they are a largely invisible group, both in aged care policy and in general social awareness. This leaves their specific and sensitive needs unrecognised and unaddressed, and the gaps in anti-discrimination law leave them with little representation or protection.

83
84 85

Id, p. 255. See above, n72, p. 38. 86 Productivity Commission Inquiry Report into the Caring of Older Australians, Catering for diversity (2011), p. 254. 87 Age Discrimination Act 2004 (Cth), s35.

Uncloseting Discrimination: Ageing Consultation, Surry Hills Community Centre, 4th July 2011.

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For more detailed discussion on the use of exemptions, see Exceptions, Exemptions and Special Measures. Recommendation 7: The Federal Government should develop a national strategy and action plan to recognise the needs of gay and lesbian elders. Action plans relating to sex and gender diverse elders should also be developed in consultation with these communities. Recommendation 8: All aged care providers should be accredited in accordance with their compliance with all anti-discrimination laws.

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YOUNG PEOPLE Young people often face considerable discrimination and vilification in school-based contexts and when coming out to family and peers. Writing Themselves in 3 (2010), a national study released in 2010, highlights that over 60 percent of young people experience some form of verbal or physical abuse, 80 percent of which occurs in schools.88 The report further indicates that vilification and harassment has increased considerably. Such discrimination is often exacerbated by a lack of social and economic capital, and limited support networks in schools or local communities. In order to explore the impact of such discrimination, it is necessary to concentrate on how young same-sex attracted people negotiate their sexual and gender identities in both public and private contexts. Coming Out Not only do same-sex attracted youth have to deal with the emotional and physical changes associated with adolescence, but may embark on the coming out process and have to negotiate their emerging sexual identity. The provision of specialised LGBTI support services throughout what can be a difficult period is imperative to the wellbeing and mental health of GLBTI youth. Sharon, NSW, comments: I found out about GALAH (Gays and Lesbians at Hornsby) from Kids Help Line. Id been in hospital and nobody (psychiatrists and counsellors) knew anything about GALAH. It wasnt until I made that call that I found about thatAt my school there were only two out gay men and I was the only out lesbian. then I found Twenty10 and I feel more comfortable connecting with people who are like me.89 Specialised LGBTI service providers need to not only exist, but must also be accessible to those requiring access to them. This requires other support providers such as school counsellors, psychologists and doctors to be aware of the services in order to refer GLBTI youth to them as needed. Additional funding of and extended provision of services that support GLBTI youth in the unique issues they face is vital. Broader public campaigns and initiatives that bring homosexuality into the mainstream may lead to the creation of a more supportive environment in which to come out. Jimmy, NSW, adds: The Proud Schools program is so important as thats where you start changing perceptions and building the confidenceThats for me is the biggest change, it needs to be brought to normal so homosexuality is not a weird thing. From a young age, people need to know that its ok to be gay.90
88

Lynne Hillier et al, Writing Themselves in 3: The third national study of the sexual health and wellbeing of same sex attracted and gender questioning young people (2010), p. ix. 89 Uncloseting Discrimination: Youth Consultation, Twenty10, 16th July 2011. 90 Ibid.

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Schools Much of the discrimination faced by LGBTI youth pertains to various facets of the school environment. This is problematic not only due to the compulsory nature of education, but because the school years may be the most formative of ones life. Although schools are generally perceived as a place where students should feel safe and included, Writing Themselves in 3 found that 37 percent of young LGBTI people described their school as homophobic or very homophobic.91 Rhamya, NSW, says: Its not a case that if you are a gay student in that environment that you can go to a different schoolI think High School is one of the environments that validates homophobia more so than any other environments.92 The discrimination and homophobia suffered by LGBTI youth arises from a number of different spheres within the school environment. Because of this, a holistic school approach to normalising homosexuality and eliminating homophobia should be considered. Such an approach recognises the numerous sources of discrimination, and aims to eliminate this discrimination by scrutinising the role of teaching and support staff, as well as wider structures such as school policies and curriculum. These changes should be designed not only to accommodate differences in sexuality within the school community, but actively support and promote such diversity. Sharon, NSW, adds: We need to move our perspective from how we perceive homosexuality- from how we tolerate it and just think they will be out of my school soon, to accepting it.93 Undeniably, homophobia and discrimination have negative consequences on the physical and emotional wellbeing of GLBTI youth. Generally speaking, people who identify as GLBTI are over represented in mental health statistics. The responsibility for the mental health of GLBTI youth lies on a number of parties, including health providers, support services and schools. The Writing Themselves in 3 report highlights the important role schools play in the mental health of their students, stating that if they do nothing, they will exacerbate ill mental health in their SSAGQ students by allowing homophobia to flourish.94 Support services There is a notable deficiency of LGBTI specific support services for LGBTI youth within schools. Support and resources such as counsellors specifically trained to deal with LGBTI issues, queer safe spaces, and gender-neutral bathrooms are unlikely to feature in mainstream schools.
91 92

See above, n89, p. xi. See above, n90. 93 Ibid. 94 See above, n89, p. 77.

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Although general services such as counsellors may be provided to all students, the attitude and knowledge of the counsellor towards LGBTI issues may not make a counselling service accessible to a sexuality or gender diverse student. This is more likely to be an issue in faith- based schools. Ari, NSW, suggests: In High School one of my friends who was gay and was coming to the point of coming out and was struggling a bit. He decided to go to the school counsellor who was a Nun and was told you can follow this path if you want but you will go to hell. This is not what he needed to hear at the time from a school counsellorI went to a public school, I sought the counsellor there but there seems to be a complete lack of resources there. My school had 1,500 students and once counselor.95 Not only should school counsellors address the manifestation of discrimination or homophobia, but they should also play a proactive role in identifying why the homophobia or bullying is occurring. Hohnke and O'Brien suggest that the school counsellor can be pivotal in developing school-based support groups for gay and lesbian students and their allies, as well as changing school attitudes to homosexuality.96 It is vital to examine the core issue of homophobia and the underlying school culture, rather than simply dealing with the consequences of the discrimination on the individual. Curriculum Largely, gay and lesbian issues and concepts of homosexuality do not feature in the school curriculum. Whilst there is not room for such discussion in every subject, a large number of mainstream subjects do lend themselves to discussions of LGBTI issues. The inclusion of LGBTI relevant sex education in Personal Development, Health and Physical Education will be considered in further detail later in the report. Bringing issues of sexual diversity into mainstream dialogue is conducive to the development of supportive classroom environments and social inclusion, as Sharon, NSW, notes: The schools I went to were not overly homophobic but were silent on the issue. I think we need to move being gay out of the sex zone in PE and into other subjects.97 Conversely, ignoring the issue is likely to accentuate the stigma and taboo that surrounds homosexuality, and emphasise the constant assumption of heterosexuality which renders gay and lesbian people, youth in particular, invisible and seemingly non-existent.98
95
96

Mark Honke and Patricia OBrien, Discrimination against same sex attracted youth: The role of the school counsellor (2008) 18.1. Australian Journal of Guidance and Counselling 67, p. 69. 97 See above, n90. 98 Christine Louds, Learning to grow up: Young Lesbian, Gay, Bisexual People in Northern Ireland, In K. Zappone (ed), Rethinking Identity: The Challenge of Diversity (2003), pp. 90-111.

See above, n90.

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Sex education A compulsory tenet of the school curriculum is the PDHPE classes delivered in secondary school. The content of these classes often pertains only to heterosexuals and contains little, if any, information relevant to people with different sexual orientations. Illustrative of this is the finding that 80 percent of same-sex attracted youth found sex education in schools useless or fairly useless due to the lack of information for same sex health partners.99 Breanna, NSW adds: I have one sheet we got in year 9, called Being Gay - not what to do. It was a boys brochure printed in 1985 and I go to an all girls school. It was tips on clubbing and how to avoid contracting HIV.I went to a Christian school, and gay sexual education was not mentioned. In PE, they mentioned anal sex only as pertaining only to male/female, not male/male.100 This deficiency has significant flow on effects for LGBTI youth. Not including same-sex issues in sex education can have an isolating effect for same-sex youth, and may increase their likelihood of engaging in unsafe sexual practices. Writing Themselves In 3 identified that LGBTI youth are sexually active earlier than their heterosexual peers,101 a finding that highlights the necessity of adequate sexual health education. For many students, PDHPE may be their only accessible avenue to seek sexual health advice, therefore it is important that information delivered is relevant, comprehensive and up-to-date. Including same-sex attracted sex education as a compulsory unit of PDHPE will make inroads to normalising homosexuality and provide an avenue for LGBTI issues to take a place in mainstream classroom discussion. Amendments to school curriculum should ensure that these classes deliver material that reflects the various sexual orientations and preferences of students. Reiterating the holistic approach, sexual minorities should not only be considered in the context of sex education, but throughout the whole curriculum. Homophobic related bullying and discrimination Of the LGBTI youth that have suffered abuse, 80 percent named school as the place where the abuse occurred, making it the most common place of abuse.102 Perpetrators of homophobic related bullying are not just students, but also relate to staff members who are aware of the bullying and choose to ignore or condone it. Discrimination or bullying may be overt in nature, and manifest itself in visible ways. Jimmy, NSW, reflects: In drama once I complained to my teacher about how everyone was teasing me for being gay. In front of everyone she asked me, Well are you?103
99

LGBT Health Systems Project (QAHC), Factsheet - Gay, Bisexual and Transgender young people (2008), http://www.qahc.org.au/files/shared/docs/young_people.pdf. 100 See above, n90. 101 See above, n89, p. 33. 102 Id, p. ix. 103 See above, n90.

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Ari, NSW, adds: One personal experience is where I came out to a friend at school. The next day I went into the toilet and the cubicle was covered in graffiti that said [name] is a dyke. The school didnt do anything about it except paint over it.104 Conversely, there are more insidious means of discrimination that perpetrators may not even be aware of. This includes the common use of expressions such as thats so gay and poofter, that while may not be directed towards a same-sex attracted youth, certainly stigmatise homosexuality. Joseph, NSW, adds: A lot of kids say they dont experience homophobia in school, but when you ask how they get treated in class they say I get treated like the gay one. So theyre not getting bullied or having their head flushed down the toilet but its more of a subtle homophobia where people just assume because youre gay, that must be all that there is to you.105 Furthermore, Linda, NSW, elaborates: My son is in primary school and everyone says Thats so gay as an insult, I confronted the school about it and they said there was nothing they could do. It seems very common among young boys and it seems to be acceptable to adults. If a child was being made fun of for their ethnicity the authorities would come down on them, but not in this case.106 Teachers have a responsibility to discourage the use of such expressions, due to the flow on effects to LGBTI youth of such usage. To do this, teachers and support staff need sufficient resources to understand the unique issues facing LGBTI youth, as well as to recognise that sexuality based bullying or discrimination may need to be addressed differently to more common forms of bullying. Consideration must be given to the notion that general bullying policies are not sufficient to address homophobic bullying, but more specific and defined policies are necessary, even if the only effect of this is to inform staff that such bullying does exist. Adam, NSW, notes: As a teacher, I have nothing in my policies regarding homosexuality. I know I would struggle to find information for these children. If I wanted to help, Id have to do it on a computer outside of work hours.107
104 105

See above, n90. Ibid. 106 Ibid. 107 Ibid.

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Discrimination in the formative years of youth does little to encourage the development of self-esteem or confidence in their sexual orientation. The consequences of homophobic bullying are serious, and include stigmatisation, social and psychological alienation, and increased risk of suicide and self-harm.108 It is evident that there is a need for more structural changes to policy for lasting, effective change and greater awareness about the consequences of homophobic related bullying. Writing Themselves in 3 confirms that young people who reported their school as having a supportive environment were less likely to harm themselves or attempt suicide, indicating the importance of creating and implementing such policy.109 Policy Responses In 2010, the Federal Government released the National Safe Schools Framework, emphasising the need for clear and accountable policies in promoting student wellbeing.110 While a number of schools and some state-based Departments of Education have had disparate programs or policies relating to homophobic bullying, this has lacked a holistic and comprehensive approach. Primarily, Australian curriculums attempt to engage with the issue of same-sex attraction in the context of sexual health, usually in PDHPE modules. Policy responses to the aforementioned problems, however, are improving. Recently, both Victoria and NSW have introduced programs, the Safe Schools Coalition and Proud Schools program respectively, to address the specific problem of homophobia in schools.111 Andrew Barr, ACT Minister for Education, also recently announced the development of training modules to promote targeted educational policy initiatives to help address some of the aforementioned concerns. The other state and territory jurisdictions have yet to implement comprehensive policy measures to address the specific issue of homophobic bullying. While the programs introduced by Victoria, NSW and the ACT are largely in their infancy, the different projects aim to provide peer education, parent education workshops and professional development training in order to neutralise prejudices in broader secondary public schools communities. It seeks to promote a welcoming space for those who are same- sex attracted. In order to ensure the pilot is representative, the Proud Schools program in NSW, for example, will be implemented in a diverse cross-section of 12 rural and metropolitan schools. Though, this program excludes religious and independent schools.

108

Crispin Thurlow, Naming the outsider within: Homophobic pejoratives and the verbal abuse of lesbian, gay and bisexual high-school pupils (2001) 24.1 Journal of Adolescence 25. 109 Lynne Hillier et al, Writing Themselves in 3: The third national study of the sexual health and wellbeing of same sex attracted and gender questioning young people (2010), p. x. 110 Department of Education, Employment and Workplace Relations, National Safe Schools Framework (2010), http://www.deewr.gov.au/Schooling/NationalSafeSchools/Pages/nationalsafeschoolsframework.aspx. 111 Foundation for Young Australians, Safe Schools Coalition Victoria Welcomes NSW Proud Schools Program (2011), http://www.fya.org.au/safe-schools-coalition-victoria-welcomes-nsw-%E2%80%98proud-schools%E2%80%99- program/

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Student workshops, for example, seek to challenge some of the underlying beliefs in many education systems: that all students are heterosexual and only those who are not normal exhibit same-sex attraction or gender non-conforming behaviours. By supplementing workshops with pastoral care resources that acknowledge that same-sex attraction is not deviant or disordered, the program aims to equip students with the knowledge to recognise and challenge homophobia. The underlying policy rationale for this approach is simple: young people listen to other young people. However, there are some notable problems in ensuring comprehensive implementation. The program is confined to secondary public schools. This is particularly concerning when considering that legislative exemptions for faith-based independent schools, in a range of state jurisdictions, effectively legitimate the expulsion of students on the sole basis of their sexual orientation or gender identity. These exemptions exist in most state anti- discrimination laws. Recommendation 9: The Federal Government must recognise the needs of same-sex attracted young people in the National Safe Schools Framework. Sex and gender diverse needs should also be addressed in consultation with these communities. Recommendation 10: Federal and state governments should implement policy initiatives to respond to homophobic bullying in schools, and appropriately resource these initiatives for students, teachers and parents. Bullying related to sex and gender diversity should also be addressed in consultation with these communities.

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FAITH AND RELIGION Sexuality and religion are often treated as antithetical ideas. However, many LGBTI people identify as religious, and freedom from discrimination in faith-based contexts. This is made difficult with the wide-ranging exemptions under anti-discrimination laws. The consultation revealed the disparate ways religion and sexuality interact in peoples public and private lives. Religion in Australia As a secular democracy, Australia has no official state religion.112 Despite this, organised religion (and in particular, Christianity) continues to play a significant role in Australian society, particularly in politics and policy making. Groups such as the Australian Christian Lobby are vocal in their opposition to full legislative equality for people in the LGBTI community.113 However it is important to note that views such as these are not necessarily representative of all Christians. As the Uncloseting Discrimination consultation demonstrated, faith and religion plays a significant role in the lives of many LGBTI people, their friends and families. Every Australian census has asked an optional question about religious affiliation. The 2006 Census showed that Australian society is growing in religious diversity, largely due to Australias changing migration stream. While Christianity is still the most common religion, this percentage has slowly decreased since the 1911 census from 96 percent to 64 percent in 2006.114 In the decade between 1996 and 2006 the proportion of Australian Catholics grew, while Anglican, Uniting, Presbyterian and Reform affiliations decreased. Some smaller Christian Pentecostal denominations (such as Hillsong) grew over the decade. Importantly, the census does not measure each individuals level of commitment to the religion or their active involvement. Hence, this number may include people who are nominally religious (such as those initiated into a particular religion as a child but no longer maintaining any particular involvement or belief). Religious affiliation amongst LGBTI population Research has shown that in terms of religious affiliation, LGBTI people position themselves in a markedly different way from the general population.115 In a study comparing LGBTI religious affiliation with the general population, 71.6 percent of LGBTI people reported having no religion, compared to 18.7 percent of the general population. The subjects in this study were raised in religious families in equal proportion to the rest of the population, and thus retention rates were shown to be much lower for the LGBTI population.
112

Department of Foreign Affairs and Trade, Religious freedom (2008), http://www.dfat.gov.au/facts/religion.html. 113 See Australian Christian Lobby, http://australianchristianlobby.org.au/. 114 Department of Foreign Affairs and Trade, Religious freedom (2008), http://www.dfat.gov.au/facts/religion.html. 115 Murray Couch, Hunter Mulcare, Marian Pitts, Anthony Smith & Anne Mitchell, The Religious Affiliation of Gay, Lesbian, Bisexual, Transgender and Intersex Australians: A Report from the Private Lives Survey (2008), pp. 1 -11.

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Mental health issues Bibhu, NSW, reflects: The outcomes are serious to the point of suicide, mental health problems that are being documented time and again. We have the data, stories and case studies when is some actually going to do something? The longer those policies are in place the longer people are going to be damagedQualitative data is plentiful, there is some quantitative too. There are negative consequences in all aspects of discrimination, particularly around young people but in all ages. Last study I did was 850 people and was presented in UK recently addressed that if you come from a Christian religious background you are much more likely to have mental health problems than non-religious gay people. 60% of the sample had experienced serious conflicts in the past and 10% were still experiencing themIt was mostly quantitative but qualitative too, there were stories mainly from churches and parishes, but also Catholic schools. There were some from counsellors as well, anything that the family as a context was connected to, people were afraid that if they came out their sexuality wouldnt just affect them but also the networks of their family.116 Faith communities and religious congregations often provide an invaluable support network for many people. However, when coming out to friends and family, many LGBTI people lose access to the benefits of belonging to these communities. There is an obvious tension that exists between organised religion and people who identify as other than heterosexual. Traditional religious teaching often takes a heteronormative view about issues relating to family, sexuality, and the roles of men and women. However, alternate views have begun emerging in most religious traditions that refute many of these assumptions. Homophobic interpretations of scripture have been critiqued by theologians in liberal and mainline Christian denominations, opening spaces for LGBTI inclusion in religious organisations. As evidenced by the research into religious affiliation, many LGBTI people respond to religious homophobia by abandoning religions altogether.117 Despite this, some LGBTI people find a way to reconcile their faith and their sexuality, and remained involved in their religious tradition. Some reinterpret religious teachings and switch into a more affirming denomination or congregation, while others may change religion. Some religious denominations have emerged to cater specifically to the needs of LGBTI religious people, such as the Metropolitan Community Church. Other social groups offer support for people from particular religions or denominations, such as Jewish group Dayenu and Pentecostal group Freedom 2 b[e].
116
117

Uncloseting Discrimination: Faith and Religion Consultation, Surry Hills Community Centre, 18th July 2011.

Murray Couch et al, The Religious Affiliation of Gay, Lesbian, Bisexual, Transgender and Intersex Australians: A Report from the Private Lives Survey (2008), p. 3.

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Spectrums of belief Faith or religion is not circumscribed by one universal doctrine. As Claire, NSW, notes: Within all these different denominations and churches you get a spectrum of beliefs and attitudes.118 In many instances there is a vast difference between the views espoused by religious leaders and the views held by the members of that religion. This divide between church doctrine and lay peoples belief is evident in the study Mapping Homophobia in Australia119. This research mapped homophobia in Australia across a range of different demographics. Homophobia was measured by whether the respondents believed homosexuality was immoral. For example, when it came to religion, the research suggests that while the Roman Catholic Church is one of the most vocal opponents of LGBTI inclusion, Australian Catholics were the least homophobic amongst the religious population. Anglican and Uniting Church members were close behind. Moreover, it evinces that Catholics in particular are adept at interweaving their own moral decisions with the various doctrines encouraged by church hierarchy. Participants also identified support for LGBTI inclusion amongst heterosexual Christians. Rob, NSW, adds: A number of Christian heterosexuals have stood up and spoken against the Australian Christian Lobby and are saying to people like Peter Madden and Fred Nile, You dont speak for us, this is not what we are about.120 In light of the growing attention placed on the relationship between religious groups and LGBTI Australians, many religious leaders have bucked the trend and expressed their support for equal rights for LGBTI people. Shanya, NSW, adds: When you look at how most of the major religions are represented in the media its a very conservative and extreme minority. Groups such as the Australian Christian Lobby are assumed to speak on behalf of 60 percent of the population when really they dont. There is no way of moderating that discussion.121

118 119

See above, n117. Michael Flood and Clive Hamilton, Mapping Homophobia in Australia (2005), p. 4. 120 See above, n117. 121 Ibid.

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Social Services Churches and religious groups have a long history of providing welfare services in Australia. Until the mid-1980s, the government often had an equal level involvement in the direct provision of services. Due to economic liberalisation, the government slowly withdrew from directly providing these services, allowing space for NGOs to work in this area. Under the Howard government, religious NGOs were often the preferred recipients for government contracts and funding.122 With a less cumbersome bureaucracy, ability to adapt to change and grassroots involvement in the community, many NGOs are able to provide welfare services more efficiently than government.123 However, it is problematic that a great proportion of NGOs are exempt from anti- discrimination laws designed to protect LGBTI Australians. Not only is there the problem of NGOs receiving taxpayer funds while refusing to offer services to all people, but there is also the simple issue of fairness and equality these public services should be available to all Australians. Reputation and perceptions While many religious charities refuse to utilise these exemptions, the perception still exists that all religiously run services will discriminate against LGBTI clients, leading to a lack of choice in accessing welfare. As Linda, NSW, recalls: I was working with a transgendered woman who needed financial help, but every service in her area was run by religious groups and she was wary about approaching them because of the way she might be treated.124 The actual positions of many faith-based NGOs are unclear, leading many LGBTI people to avoid them altogether, even when they may have policies of non-discrimination. Many religious LGBTI people continue to live out their beliefs by working for religious organisations. However, these people face the constant threat of losing their job if their sexuality is discovered. Likewise, heterosexual religious leaders who believe in a more inclusive and affirming policy risk their jobs if their opinions are discovered. Shanya, NSW, reflects: Because it is still mainstream from a Christian perspective to have a negative view, there is a lot of risk for people to step up because they risk their job and positions within the church because they have no protectionI worked for an international aid agency in a religious context. They hired me; they saw my CV so they know what Im about and that Im gay. So theres no issue. But I actively re-closeted myself to protect the organisation, because they depend so much upon the funding of the religious organisation for their survival. I had to protect the organisation even
122

Administrative Review Council, Report to the Attorney General The Contracting Out of Government Services (1998), p. vii. 123 Id, p. 26. 124 See above, n117.

39

though my bosses encouraged me to be myself, and said the organisation would be okay. We were on the cutting edge of human rights.125 Several participants in the consultations likened this to bullying behaviour in a secular workplace and described it as an OH&S issue, noting the lack of protection offered to people in this situation. Recommendation 11: Faith based organisations participating in the provision of public services should be required to comply with anti-discrimination laws.
125

Ibid.

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DISABILITY People living with a disability often face discrimination both within and outside LGBTI communities. Often, LGBTI people with disabilities not only have to disclose their sexual or gender identity, but also have to out their disability, if it is not evident. Moreover, resource constraints combined with assumptions about peoples physical or intellectual capacities can lead to the exclusion of those living with a disability. This is particularly concerning for those who are unable to fully participate in a range of familial, recreational and professional activities. Double prejudice People with a disability and who identify as LGBTI are often colloquially referred to as a minority within a minority. The significant myth and fear around what it means to have both a disability and be gay or lesbian means that these individuals are subject to a double prejudice.126 The process of coming out in a traditional sense is one that most gays and lesbians are able to identify with. People with a disability have likened revealing their disability as a second coming out, as Leslie, NSW, says: I continually have to come out about my dyslexia and my digestive disorder- its like a continual coming out. I often feel like I have to fight the stigma of having a disability that I cant even broach the subject of my sexuality.127 Traditionally taboo topics, wider society needs to accept and de-stigmatise both disability and homosexuality. Coming with this normalisation will be an increased social connectedness for people within the gay and lesbian disability community, which in turn will have positive mental health ramifications. Living in community residential units or institutions Little attention has been given to the specific needs of gays or lesbians with a disability living in community residential units or institutions. The personal nature of the care provided to these individuals means that it is vital that they feel comfortable in that environment. This should extend to feeling comfortable expressing their sexuality, regardless of how they identify. John, NSW, adds: When you have someone caring for you in the shower, dressing you, you are very vulnerable I wouldnt want someone homophobic or someone shocked by my disability.128

126

Rosemary Mann et al, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 21. 127 Uncloseting Discrimination: Disability Consultation, Surry Hills Community Centre, 22nd August 2011. 128 Ibid.

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Although government disability policy requires disability workers to respect the rights of individuals who are engaged in, or wish to engage in a same-sex relationship,129 there is likely to be a significant variation in the attitudes of different disability services to sexuality and sexual expression. The Still Off Limits? (2004) study highlights that the majority of staff working for intellectual disability services were reluctant to engage with the people they supported in the area of sexuality and relationships.130 Regardless of the individual attitudes of the care provider to homosexuality, it is imperative that the standard of care provided to same-sex attracted persons should not be compromised. Vuong, NSW, suggests: There are a lot of people out there using disability accommodations services or elsewhere who are too scared to speak out due to fears of retribution, fears of being homeless. There are people out there who deserve a better level of service who are simply not complaining because of fear.131 This emphasises the importance of employee training in sexuality and sexual diversity, and policy that not only respects the right of individuals to engage in a recognised same-sex relationship or sexual activity, but also actively supports and promotes it. The desexualisation of people with a disability There is a common misconception that people living with a disability are asexual or incapable of engaging in sexual relations. Freida, NSW, reflects: Like that guy who came up to me when we were out at Sly and said How do you know shes gay? to you, about me? I get the sense that a lot of people think there is an aspect of exploitation where the sexuality of people living with a disability is expressed. Its patronising, its treating people with a disability like they are children.132 Generally, this conception is not the case, and such presumptions can undermine the health and wellbeing of those affected. Stereotyping people with disabilities as non-sexual effectively acts as a barrier to safe sex education, as evidenced by the lack of sexual health information and support services for this sector of the community. For people living in care contexts, an environment characterised by dependency and a lack of privacy where opportunities for sexual expression are often limited or ignored, this issue is exacerbated.133
129

Rosemary Mann et al, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 23. 130 David Abbott and Joyce Howarth, Still Off-Limits? Staff Views on Supporting Gay, Lesbian and Bisexual People with Intellectual Disabilities to Develop Sexual and Intimate Relationships? (2006), p. 122. 131 See above, n128. 132 Ibid. 133 Rosemary Mann et al, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 22.

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Institutions are environments that pre-suppose resident passivity and asexuality. They are environments that are therefore virtually incapable of the formal acceptance of any form of resident sexual identity or expression, and certainly not homosexual love. 134 Leslie, NSW, adds: If organisations see someone with a disability, they automatically put that person in a disability box it is almost like that person cannot have a sexuality.135 Instead of sexuality being considered an adjunct to the disability or a manifestation of it, the sexual needs of individuals in care should be considered an integral element of the care and support that is provided to them by disability services. Access Issues of access are integral to people living with a disability. Access is broadly defined to include considerations such as the act of going into a service or agency or part of the community, about physical and psychological approachability, or about someone's right or privilege to receive a service or participate in an activity. 136 Few service providers and disability organisations specifically cater for the needs of people living with a disability who are also gay or lesbian. The consequences of this deficiency fall on the person seeking assistance or support. Sean, NSW, notes: Sometimes its the cumulative effect of just again and again seeking services. If you need home care to help you clean the house or have a shower, you are really vulnerable when they are doing things like that. I would want someone who was not homophobic or shocked by my disability. To find someone who can deal with both these things is exhausting. As soon as you go out past Redfern a lot of organisations are not gay friendly and dont like dealing with issues like that. The amount of time I spent on the telephone advocating for interpreters to be provided by the government is ridiculous. People are expected to make do.137 Organisations within the disabilty sector should recognise and accomodate the specific needs sexual, physical, emotional or otherwise, of people who have a disability and are homosexual. Organisations and care providers that do offer such personalised service should promote themselves as being LGBTI friendly in order to make the service more acessible.
134 135

Access Plus, Spanning Identities (1998), p. 6. See above, n128. 136 See above, n134, p. 7. 137 See above, n128.

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Opportunities for disabled gay, lesbian, bisexual, transgender or intersex people to interact socially can be virtually non-existent.138 This is often hampered by physical barriers which make accessing social arenas difficult. Physical access ramps, wheelchair and walking frame access to gay and lesbian events, support networks, nightclubs, toilets and other venues are often limited. 139 Barriers to physical access often have significant ramifications on other aspects of the individuals quality of life and wellbeing, including their connectedness with the community and their mental health. Recommendation 12: Sexual minorities living with a disability should have greater access to carers and services to participate in social, domestic and public activities. Initiatives for sex and/or gender diverse people living with a disability should be developed in consultation with these communities. Connecting the LGBTI and disability communities LGBTI people with a disability may face difficulty connecting with the LGBTI community and the disability community respectively, with few opportunities for these worlds to intersect. This is largely based on strict perceptions of the composition of each community, whereby in the lesbian and gay movement they are considered disabled, and in the disability movement homosexual.140 Jimmy, NSW, says: The gay community to a degree still dont feel like people with disabilities have equal rights to be gay and all that. A thing I have noticed especially when you come out that you have a disability, some of the gay members of the community want to shut you off.141 Within the LGBTI community, people with a disability are rarely accommodated. Joseph, NSW, adds: Mardi Gras party this year (2011) were offered a team of accredited volunteer interpreters and they refused to have these interpreters for the Presidents speech, instead they had untrained people choreographed to memorise the signs. It was incredibly offensive to deaf people in the community because these untrained people did not know what they were saying and misinterpreted some phrases. What we are seeing out here in the community now is nothing really for gay disabled people, a lot

138

Michael Brothers, It's Not Just About Ramps and Braille: Disability and Sexual Orientation, In K. Zappone (ed.), Rethinking Identity: The Challenge of Diversity (2003), p. 55. 139 Rosemary Mann et al, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 23. 140 MyHandicap.com, Community, http://www.myhandicap.com/homosexuality- disabilitygay0.html?PHPSESSID=e66a68dfa6a046144892b395de9c352f 141 See above, n128.

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of gay events, but not specifically accessed properly for people with different types of disabilities. I think the gay community should be more disability friendly.142 Within the disability sector, gays and lesbians remain largely invisible and are often not catered for in mainstream disability services. Being excluded from both communities results in individuals within this sector lacking any sense of belonging or social connectedness. Our image conscious society and the role of the media Mainstream and queer media play a significant role in shaping notions of beauty. The media tend to portray stereotypical, able-bodied people and rarely feature people with disabilities. Freida, NSW, adds: As in the wider society, the increasing consumerism of gay and lesbian culture places the abled-beautiful-body in opposition to the dis-abled. 143 This has the effect of adding to the marginalisation and desexualisation of people living with a disability. Belinda, NSW, suggests: I made a pitch to have an exhibition of a photographer Belinda Mason about disability and sexuality gay and straight, and the response was No, no, no. It was such a deadening experience. The exhibition we are putting on has disability content but its really safe, it has nothing to do with sexuality. Its us being dealt with in such a minimised conceptualisation.144 This emphasis placed on image by the media and society was a key theme at the NSW Access Plus Spanning Identities (1998) conference and twelve years on little progress has been made, with a key organiser of the conference remarking: All the issues about body and relationships with the gay community are still the same- they have not changed at all. The same things happen.145 Both mainstream and queer media need to broaden the images they present to society in order to affirm the beauty of people who have a disability and reflect the diversity and richness of the LGBTI community. 146
142 143

See above, n128. Rosemary Mann et al, Swimming Upstream: Making Places Welcoming A Report on the Needs of Gay, Lesbian and Bisexual People in Hard to Reach Groups, Gay and Lesbian Health Victoria (2006), p. 25. 144 See above, n128. 145 Ibid. 146 See above, n134, p. 30.

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HIV as a disability There is still much debate regarding the classification of HIV/AIDS as a disability, rather than as an illness or disease. Despite this, the Disability Discrimination Act 1992 (Cth) includes in its definition of disability the presence in the body of organisms causing (or capable of causing) disease or illness, which is applicable to people living with HIV/AIDS.147 HIV is a disability, even though its commonly perceived as a chronic illness.148 Although it is recognised as a type of disability under domestic legislation, there are few service providers who address issues of both HIV/AIDS and other disabilities. HIV/AIDS and disability service providers are considered separate and distinct, even though they provide similar services in the form of accommodation support, respite, home and community care and information and referral. This is problematic for people who live with a disability as well as HIV/AIDS. Jerome, NSW, notes: HIV services are not regulated by any kind of philosophy I have a friend who was kicked out of an accommodation service for HIV people because he acquired a mobility disability related to his HIV status and they were not willing to keep caring for him.149 Individuals with a disability should have access to personalised services that addresses their unique circumstances, including their sexuality and disability. There is an obvious need for people living with a disability as well as with HIV/AIDS to have access to adequate and relevant information, resources and care. In cases where a disability service provider is no longer able to address client needs, there should be easily accessible channels through which to refer clients. Currently, there is a lack of confidence in the capability of non-HIV specific services and therefore a resistance to refer by some service providers. Sometimes services are overconfident in their capability to deliver non-HIV-related care.150 To address this issue, HIV service providers and disability service providers must be familiar with the services each other provide. With respect to sexual health, it is often the case that sexual health service providers lack knowledge about disability issues, or have misinformed or stigmatizing attitudes towards persons with disabilities.151 This includes the assumption that people living with a disability are asexual. Despite these misconceptions, the provision of safe sex education is vital, and should address issues of HIV/AIDS. Mark, NSW, adds:

147 148

Disability Discrimination Act 1994 (Cth), s4. See above, n128. 149 Ibid. 150 The Consortium for Social and Policy Research on HIV, Hepatitis C and Related Diseases, Report on Consortium Workshop 17 - HIV and disability: looking across the great divide (2007) p. 2. 151 World Health Organization, 'Disability and HIV Policy Brief' (2009).

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My semen is being treated differently to that of a heterosexual man the assumption being that I would have HIV or another communicable disease and through the IVF process I would be passing this to my friend and the mother of my child and potentially to my baby as well.152 People who reveal their HIV status should feel confident that revealing their status will not result in stigmatisation or impinge on the care or level of service provided to them. Recommendation 13: People living with HIV should have improved access to services without coercive disclosure and discrimination.
152

See above, n128.

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EXEMPTIONS, EXCEPTIONS AND SPECIAL MEASURES Exemptions and Exceptions Exemptions and exceptions are a problematic feature of anti-discrimination law. Essentially, exemptions or general limitations clauses exist to prevent undue hardship on particular parties in adhering to anti-discrimination laws. Unsurprisingly, there exists a great diversity of opinion about exemptions, especially in relation to those provided for religious organisations. It is important to note, that while religious groups and faith-based services are given a blanket exemption from adhering to anti-discrimination law, many choose not to make use of these exemptions. Some even resent the existence of exemptions, seeing the exclusion of one particular group as antithetical to their faith. GLRL would like to make it clear that the following section should not apply to activities which have the primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. Whether at a Commonwealth or state level, there are numerous inconsistencies in the use of exemptions and exceptions. In particular, one of the most significant deficiencies with existing provisions in state and territory anti-discrimination legislation is the wide-ranging discretionary exemptions and exceptions which allow discrimination on the basis of sexuality and sex and/or gender identity in some areas. Rather than rehearse the moralising debate on freedom of religion versus the rights of sexual and gender minorities, the consultation highlighted how exemptions work through the lens of public administration. Due to the complex nature of modern government, services historically provided for by government agencies are often contracted to non- government organisations. The most noteworthy of these areas include: private or religious schools and educational authorities153; religious institutions154; religious beliefs and principles155; working with children156; work in small businesses157; work in a private household158; and the provision of accommodation services in certain circumstances.159
153

Anti-Discrimination Act 1997 (NSW), s 49ZO(3); Equal Opportunity Act 1995 (Vic), s 38(a); Discrimination Act 1991 (ACT), s 27, s 46; Anti-Discrimination Act (NT), s 37A, s 30(2). 154 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1)(d) of the definition of discrimination; Equal Opportunity Act 1995 (Vic) s 75 and s 76; Anti-Discrimination Act 1977 (NSW) s 56; Anti-Discrimination Act 1991 (Qld) s 29, s 109; Equal Opportunity Act 1984 (SA) s 50; Discrimination Act 1991 (ACT) s 32; Anti- Discrimination Act 1992 (NT) s 51. Note that the wording and scope of these provisions varies considerably from statute to statute; many of the provisions do not apply to all the grounds listed in the relevant statute. 155 Equal Opportunity Act 1995 (Vic), s 77. 156 Anti-Discrimination Act 1991 (Qld), s 28(1). NB, this provision relates to gender identity rather than sexual orientation. 157 Equal Opportunity Act 1995 (Vic), s 21(1); Anti-Discrimination Act (NT), s 35(2).

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Sharon, NSW, notes: Private schools are funded 70% by the government. If they want to have those exemptions they shouldnt take that money from the government. For a lot of people they dont have the choice in service, particularly around schools. I went to Catholic primary and secondary schools, because my parents wanted me to go to that school. In that environment if youre gay, you cant just go to another schoolThe schools I went to werent overtly homophobic, they were more silent on the issues. In school one of my friends was struggling with coming out, he went to the school counsellor, who was a nun. She sat him down with a glass of milk and said he could follow the path he was on, but he would go to hell. This is not what he needed to hear at the time from a school counsellor. Many people are in these institutions but they dont have a choice about being there.160 Combined, these exemptions mean that numerous areas exist where it is legal for sexuality, sex and gender diverse people to be treated differently. The private and religious school exemption allows non-government schools to refuse to employ, or dismiss, gay and lesbian teachers; and it allows these schools to refuse to admit, or expel, students who identify as gay or lesbian.161 While specific exemptions for private or religious schools and educational authorities are problematic, the exemption for genuine religious beliefs or principles is more insidious. It exempts discriminatory conduct where it is necessary to comply with religious beliefs and principles. According to Anna Chapman: [T]his religious beliefs exemption operates on a number of different levels. It significantly curtails the scope of the Victorian Act, it suppresses the visibility of lesbians and gay men in all aspects of life covered by the Victorian Act and it is a factor dissuading potential gay and lesbian complainants from lodging a complaint of discrimination under the lawful sexual activity [and sexual orientation] ground[s] in the Victorian statute.162 Ideally, no individual or organisation or institution should be able to discriminate against anyone on the grounds of their sexuality under any circumstances. From a practical perspective, however, it would be unrealistic to expect the creation of an act without any exemptions. The right for a private religious body to discriminate, for example, might be considered slightly more palatable, if the right to discriminate was relinquished as soon as that religious organisation accepted government funds, or as soon as that religious organisation or body started providing social or welfare services.
158 159

Anti-Discrimination Act 1977 (NSW), s 49ZH(3)(a). Anti-Discrimination Act 1977 (NSW), s 49ZQ(3)(a) and (b). 160 See above, n90. 161 The Australia Institute, Public Attitudes to Discrimination in Private Schools (2004). 162 Anna Chapman, Australian Anti-Discrimination Law and Sexual Orientation: Some Observations on Terminology and Scope (1996) 3.3 Murdoch University Electronic Journal of Law 1.

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In recent administrative decisions concerning foster care in NSW, faith-based or religious bodies were given broad license to discriminate against a same-sex couple.163 Wesley Mission recently denied a gay couple consideration to foster because same-sex parenting was inconsistent with their doctrine of "Wesleyanism", rather than the teachings of the Uniting Church (of which it is affiliated). While a semantic difference, the legal implications of this decision are extremely significant. Broadly speaking, this decision effectively allows a publicly funded body broad discretion to define the parameters of their faith in terms that exclude gay men and lesbians. Unfettered discretion produces uncertainty in the law. Not only does it undermine the policy rationale of anti-discrimination legislation, it also obscures the structured and objectively principled use of exemptions. Freedom of religion is an inalienable democratic right for citizens in Australia. However, as mandated under international law, no one set of rights should displace another. When considering exemptions, it is necessary to distinguish between the public and religious character of the service being provided. Foster care, for example, is designed to the benefit children, who are wards of the State, not the Church. Organisations refusing to accept applications from same-sex couples to foster without assessing the merits of their applications are placing their interests above those of children desperately needing the care of loving parents. If exemptions could be justified, it is counterintuitive to the spirit of anti-discrimination laws, if organisations are automatically, by virtue of their own judgment, able to exclude themselves from its operation. In order to compromise on divergent points of view, it makes more sense to apply for an exemption and provide a rigorous justification as to why it is in the interests of justice, fairness and equity that they should be entitled to discriminate. If an exemption is granted, it should be made publicly known to ensure accountability. Such a compromise would have saved both the Wesley Mission and the same-sex couple the emotional and financial cost they had to undergo in fostering a child had the exemption regarding same-sex couples been public knowledge. However, in line with practice in the UK and other comparable jurisdictions, religious organisations could not be entitled to exemptions if they perform secular services funded by the government. Currently, a vast range of public social and welfare services, such as adoption and aged-care services, are contracted out to non-government bodies. As such a condition of public funding or contracting with NGOs, compliance with anti-discrimination legislation is essential.
163

OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293.

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Recommendation 14: All organisations in receipt of public funding should be required to comply with anti-discrimination law without exemptions. Recommendation 15: Any exemption to anti-discrimination laws should not be permanent. Organisations and groups seeking to rely on an exemption should be required to apply for certification. This should be reviewable every few years. Recommendation 16: Organisations with exemptions should be required to publicly state their reliance on a particular exemption to improve transparency and accountability. Special Measures A fine balance needs to be reached between outlawing all discrimination on the basis of sexuality and sex and/or gender identity, ensuring that the act is not used for spurious claims, and preserving the social and cultural identity of a disadvantaged community group. The preservation of the groups identity is an important consideration in the framing of any federal anti-discrimination legislation on the basis of sexuality and sex and/or gender identity. In line with the recommendations of the Sexuality Discrimination Inquiry in 1996, special- needs groups may be identified and seek positive discrimination measures to overcome past disadvantage, and establish gay and lesbian accommodation, events or clubs.164 In addition, sexuality-specific organisations could apply for exemptions from providing services to the broader community, for example, health services.165 One way to address these concerns could be to insert a savings clause in a federal anti- discrimination legislation, focussing on sexuality as a genuine occupational qualification. That is, a clause which stated that it is not unlawful to discriminate on the basis of someones sexuality when it is a genuine occupational qualification to be a person of a particular sexuality. Concern was raised by a number of critics that such a clause could be problematic, and could be used by churches, private educational institutions to assert that heterosexuality is a genuine occupational qualification for employment. If this clause were to be implemented, serious limitations would need to be included. In light of the problems associated with the occupation clause, a more appropriate savings clause would be one in which the social and cultural identity of gay men and lesbians is preserved. The Lesbian and Gay Legal Rights Service gave the following example of such a clause:

164

Senate Inquiry into Sexuality Discrimination, Recommendations, and Clause 27, Sexuality Discrimination Bill 1995 (Cth). 165 Sexuality Discrimination Bill 1995 (Cth), Clause 31.

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Nothing in this Act makes unlawful any activity, one of the primary objectives of which is to preserve, protect or promote the social, cultural or sexual identity of the lesbian, gay or transgender communities.166 For an example of how such a clause works in state legislation, the Victorian Equal Opportunity Act 1995 provides an exception for disadvantaged groups or minority cultures. Section 61 states: A club, or a member of the committee of management or other governing body of a club, may exclude from membership a person who is not a member of the 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.167 Any special measures included in the legislation should be considered in light of international law and Australias human rights obligations, including the need to consult with affected communities. Recommendation 17: Anti-discrimination legislation should provide a single savings clause to not make unlawful any activity that has a primary objective of promoting the social and cultural identity of diverse sexualities. Such a measure should extend to sex and gender diverse communities in consultation with these communities.
166

Lesbian & Gay Legal Rights Service, Commonwealth Legislation to Prohibit Discrimination Against Lesbians, Gay Men and Transgender Persons A Discussion Paper (1995). 167 Equal Opportunity Act 1995 (Vic), s61.

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CONCLUSION Experiences of discrimination are complex, and no one definition of discrimination or identity adequately captures the experiences that were shared during the consultations. Rather, the dialogue encouraged more questions. Despite the thematic variations in the consultations, the responses consistently indicated that there is still much needed research and community engagement. While policy and legislative initiatives are recognising the specific needs of LGBTI communities, there is still a lack of uniformity between government bodies and service providers. Moreover, a discrete approach to categorising discrimination in terms of static or individual identities ignores the multidimensional nature of peoples experiences. Embracing intersectionality is critical in policy development that aims to protect the rights of sexual minorities, including, but not limited to: young people; elders; religious and multicultural groups; people with a disability; and sex and gender diverse communities. Ongoing community consultation complemented with comprehensive anti-discrimination legislation and policy is essential in order to further the human rights of sex, sexuality and gender diverse communities in Australia.

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APPENDIX 1: LIST OF RECOMMENDATIONS Recommendation 1: Sexual orientation should be used as a broad term when developing policy and legislation to recognise diverse sexualities and people who engage in lawful sexual practices. Terminology relating to sex and gender diversity should be developed in consultation with these communities when drafting policy and legislation. Recommendation 2: Federal legislation should incorporate the numerous human rights recommendations that relate to sexual orientation in the Yogyakarta Principles. Incorporation of recommendations in relation to sex and gender diversity should be developed in consultation with these communities. Recommendation 3: The Department of Immigration and Citizenship to develop comprehensive sexuality guidelines and training modules for decision-makers. Guidelines on sex and gender diversity should be developed in consultation with those communities. Recommendation 4: Much further consultation is needed with sex, sexuality and gender diverse people living in Aboriginal communities. Recommendation 5: Federal and state government departments must develop, in partnership with community organisations, culturally appropriate services and resources for sexual minorities in multicultural communities. Resources and service provision in relation to sex and gender diverse communities should be developed in consultation with these communities. Recommendation 6: The Federal Government must engage in further consultation with intersex, transgender and other sex and gender diverse communities to improve access to services and to strengthen anti-discrimination protections. Recommendation 7: The Federal Government should develop a national strategy and action plan to recognise the needs of gay and lesbian elders. Action plans relating to sex and gender diverse elders should also be developed in consultation with these communities. Recommendation 8: All aged care providers should be accredited in accordance with their compliance with all anti-discrimination laws. Recommendation 9: The Federal Government must recognise the needs of same-sex attracted young people in the National Safe Schools Framework. Sex and gender diverse needs should also be addressed in consultation with these communities. Recommendation 10: Federal and state governments should implement policy initiatives to respond to homophobic bullying in schools, and appropriately resource these initiatives for students, teachers and parents. Bullying related to sex and gender diversity should also be addressed in consultation with these communities.

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Recommendation 11: Faith based organisations participating in the provision of public services should be required to comply with anti-discrimination laws. Recommendation 12: Sexual minorities living with a disability should have greater access to carers and services to participate in social, domestic and public activities. Initiatives for sex and/or gender diverse people living with a disability should be developed in consultation with these communities. Recommendation 13: People living with HIV should have improved access to services without coercive disclosure and discrimination. Recommendation 14: All organisations in receipt of public funding should be required to comply with anti-discrimination law without exemptions. Recommendation 15: Any exemption to anti-discrimination laws should not be permanent. Organisations and groups seeking to rely on an exemption should be required to apply for certification. This should be reviewable every few years. Recommendation 16: Organisations with exemptions should be required to publicly state their reliance on a particular exemption to improve transparency and accountability. Recommendation 17: Anti-discrimination legislation should provide a single savings clause to not make unlawful any activity that has a primary objective of promoting the social and cultural identity of diverse sexualities. Such a measure should extend to sex and gender diverse communities in consultation with these communities.

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APPENDIX 2: CONSULTATION QUESTIONS In addition to the preliminary quantitative data gathered from the Anti-Discrimination Survey, the consultation will focus on the following questions to gather more qualitative information focusing on experiential issues. 1. Can you identify the last place you experienced some type of discrimination, harassment and/or vilification? 2. Was this type of discrimination specific to the place, or was it a common experience you have had in different circumstances? 3. Briefly account for the nature of the discrimination (some more specific guided questions below): - Was it direct or unintentional? - Was it specific to a singular or multiple set of attributes, characteristics or perception of identity/ies? - Did it involve conduct that humiliated, shamed, vilified or threatened you? - Was it enacted by a person, organisation, policy, law or event? - Was the issue addressed as potentially discriminatory? 4. Did you report the discrimination or take legal action? - If so, what process was involved? - Were you satisfied with the outcome(s)? 5. What do you think is necessary to ensure that such discriminatory conduct does not occur again?

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APPENDIX 3: SURVEY DATA In addition to the consultations, we collected 400 surveys in which people identified their experiences with sexuality-related discrimination. The collated survey data has been extracted below.

SEXUAL IDENTITY 393 people responded to the question concerning sexual identity with 2 results unusable (due to readability). Approximately 78 percent of respondents identified as gay men or lesbian (in roughly equal measure). Just over 10 percent of participants identified as either bisexual or queer with around 7 percent for bisexual and 3 percent for queer. Approximately 10 percent of those surveyed did not identify themselves with the options provided (lesbian, gay man, bisexual, and queer). Some of them specified as being heterosexual, but there was one described as being disoriented while another other described as being multi-sexual.

SEX AND/OR GENDER IDENTITY

400 people identified their gender identity, but 2 results were unusable due to illegible writing. Nearly 55 percent of them were female and approximate 42 percent were male. Only 6 people were queer, 1 was female-to-male transgender, and 1 was male-to-female transgender. The remainder (1 percent) did not specify their gender identity with one person referred to having multiple gender identities.

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AGE 386 people responded with their age. Almost 49 percent of them were aged from 31-50 years of age, and about 40 percent were from 16-30 years of age. Within these two groups, more people were 21-25 years old (at nearly 17 percent) and 36-40 years old at around 16 percent. The rest were aged from 51-70 years old (at approximately 11 percent).

LOCATION 378 people responded with their postcode. Most of them, approximately 94 percent, are residents from New South Wales with nearly 85 percent from Sydney and about 9 percent from other NSW regions including the Hunter Valley, Central Coast, North Coast, South Coast. People from other states or territories, the ACT, Victoria, Queensland, and South Australia, were at 4 percent, with the majority of these from Queensland (at approximately 2 percent of the total respondents). The rest were overseas residents, accounting for 2 percent primarily from Canada, the UK, Italy and China.

ETHNIC/CULTURAL HERITAGE Many people come from culturally, religiously or ethnically diverse backgrounds. 372 people responded to this question and 278 identified with countries, 91 identified with their ethnicity, and 3 identified with their religions.

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For those identifying with their countries, over 61 percent of them are from the region of Oceania with approximately 58 percent from Australia, followed by Europeans at nearly 25 percent, and then people of Asian descent at almost 7 percent. Some Australians also share the heritage of European, American, Anglo, Celtic and Welsh. The rest of the 7 percent are from Africa, Eurasia, Middle East, and the North and South Americas.

For those identifying themselves with their ethnicity, almost 60 percent of them are Anglo, followed by Caucasians at around 27 percent, and the rest 13 percent are Aboriginal and/or Torres Strait Islander, Arab, Celtic, Jewish, and White. For those identifying with a religion, 2 were Anglican and 1 was Catholic.

RELIANCE ON SOCIAL SECURITY Nearly 82 percent of respondents did not rely on social security to supplement income. The rest relied on a range of welfare payments, such as Newstart Allowance, Youth Allowance, Disability Support Pension.

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AREAS OF DISCRIMINATION In order to quantify the extent of discrimination in different areas of public life, a scale ranging from 1-5 was used. The guidance provided on the form was as follows: 1 = no discrimination; 3 = infrequent discrimination; 5 = consistent discrimination. Almost 61 percent of respondents, amounting to 366, have experienced some form of discrimination at work. Nearly 54 percent of respondents reported being discriminated by the police or a government agency, while another 51 percent (320 in total) suffered from harassment in schools. Around 49 percent of respondents (311 in total) have experienced discrimination in parenting and another 49 percent expressed being harassed in other areas. Other areas that people experience harassment include healthcare (44 percent), welfare (38 percent) and aged care services (27 percent). 1 2 3 4 5 Employment 39.07% 17.21% 30.33% 7.65% 5.74% Parenting 51.45% 11.58% 14.47% 13.50% 9.00% Healthcare 56.37% 13.06% 19.11% 7.32% 4.14% Welfare 61.51% 11.87% 14.03% 6.47% 6.12% Aged Care Services 72.84% 7.00% 9.88% 7.00% 3.29% Education 49.38% 13.44% 20.00% 9.69% 7.50% Police/Government 46.27% 15.84% 17.70% 10.56% 9.63% Other 51.38% 3.67% 16.51% 9.17% 19.27%

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 CONTACT For further information, contact Senthorun Raj, Senior Policy Advisor, at s.raj@glrl.org.au or (02) 9571 5501.

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