This is part of a major series called Advancing Australia, in which leading academics examine the key issues facing Australia in the lead-up to the 2019 federal election and beyond. Read the other pieces in the series here.
Wednesday, November 15 2017, Northbridge Plaza, Perth, 7.00am:
“Yes responses, 7,817,247, representing 61.6% …” read the chief statistician of the Australian Bureau of Statistics, David Kalisch, on the big screen. The huge crowd erupted. Hugging, crying, comfort, joy.
That was one of the happiest moments of my life, along with December 7 2017, when marriage equality legislation passed the federal parliament.
For younger generations, this was the moment one of our defining and most hard-fought social movements had succeeded. We had won, despite the barriers put in front of us and the damaging impact of the postal survey.
However, just as gaining the right to vote did not end the women’s rights movement, so, too, will marriage equality not end the LGBTI+ rights movement.
As concisely put by Anna Brown, director of legal advocacy at the Human Rights Law Centre:
Our victory in the marriage equality campaign was the starting point for something even bigger.
Below, I consider what’s next for LGBTI+ rights in Australia, outlining key areas for reform. Importantly, it is just one perspective and cannot reflect every concern of the very large and diverse LGBTI+ community.
Equality and non-discrimination rights
In the aftermath of marriage equality becoming law, the federal government commissioned the Ruddock inquiry into religious freedom, with the report eventually released in December.
Much of the reaction to this inquiry has centred on existing exemptions that allow religious schools to discriminate against LGBT students, teachers, staff and contract workers (these federal exemptions do not apply on the basis of intersex status).
A bill before the Senate, sponsored by Labor’s Penny Wong, would remove exemptions for LGBT students. This would ensure they cannot be excluded from schools on the basis of their LGBT status.
However, we must go further. The Greens have proposed also removing exemptions for LGBT teachers, staff and contract workers. This reflects a just.equal survey finding last year that 79% of Australians opposed religious schools being allowed to sack LGBT staff.
Opposition Leader Bill Shorten has indicated Labor’s broad support for the principle that teachers should not be discriminated against, but has not specified if religious qualifications will remain.
Whatever its form, all LGBTI+ people should be protected from federal discrimination law in religious schools, without qualification. Some state and territory discrimination laws also provide exemptions to religious schools and these should also be removed.
Most states and territories also have other exemptions to LGBTI+ protections, which should be scrutinised.
One example is sporting exemptions. These allow individuals to be excluded from competitive sporting activities on the basis of their gender identity or intersex status.
Even without exemptions, other forms of discrimination against LGBTI+ people remain permissible.
The federal Fair Work Act does not provide protection on the basis of gender identity or intersex status. Only under federal laws and ACT, South Australian and Tasmanian laws are intersex status and non-binary gender identity explicitly protected from discrimination.
In New South Wales, even bisexuality is not protected.
Equality Australia’s recent survey of LGBTI+ people found discrimination to be respondents’ number one concern. The discrimination law gaps identified above should be filled as soon as possible.
Freedom from harmful practices
The intersex community is often the forgotten “I” in “LGBTI+”, despite comprising up to an estimated 1.7% of the global population.
In an interview for this article, Morgan Carpenter, co-executive director of Intersex Human Rights Australia, points out that:
Intersex people – born with variations of sex characteristics – are still largely misunderstood, and our rights to autonomy over our own bodies remains denied. Children with intersex variations are still subjected to harmful practices, including surgeries designed to “enhance” genital appearance, with judicial sanction.
It should be a priority to end these harmful practices and ensure the sex characteristics of intersex children are not altered without their informed consent.
The harmful practice of conversion therapy – whereby LGBT people are “treated” in an attempt to diminish or suppress their sexual orientation and/or gender identity – also remains prevalent in Australia.
A recent La Trobe University report found that up to 10% of LGBTI+ people in Australia are still subjected to conversion therapy. A PFLAG/just.equal survey last year found the top political priority of LGBTI+ Australians was to ban conversion therapy.
Victorian Premier Daniel Andrews recently announced that conversion therapy will be banned in that state, though further details are not yet known.
While banning the practice is an important step that should be followed by other states and territories, conversion therapy survivors Nathan Despott and Chris Csabs have argued that preventing conversion therapy requires further nuance:
[A] broader focus opens the way for the key recommendations of survivor advocates, namely legislation to address practitioners and referrers, protections for children, support for survivors, regulation of the counselling industry, and a public education campaign.
Legal and identity-related rights
In most states and territories, transgender and gender-diverse people – those whose gender identity does not match their assigned sex – are required to undergo surgery or medical treatment prior to changing their sex or gender marker on their birth certificate.
Many transgender and gender-diverse people choose not to have surgery, or cannot afford it. This should not stop them from obtaining identity documents that match their actual identity.
Tasmania also still requires transgender people to be unmarried prior to changing the sex or gender marker on their birth certificate.
This has the effect of forcing divorce on transgender people who are married and want their birth certificate to match their gender identity. True marriage equality will only be achieved when these requirements are removed.
There is also a debate to be had, as in Tasmania, on whether we should remove sex entirely from birth certificates.
Finally, there is no federal prohibition of vilification on the basis of sexual orientation, gender identity or intersex status. Four states and territories also do not prohibit LGBTI+ vilification.
One area in which vilification remains prevalent is sport. The Out on the Fields survey found that 82% of LGBT respondents reported witnessing homophobia at sport. And 84% of all respondents believed an openly LGB person would not be very safe as a spectator at a sporting event.
Just as racial vilification is now unacceptable and unlawful, so too should vilification on the basis of LGBTI+ status be unacceptable and unlawful.
Restoring funding of Safe Schools at a federal level would go some way to preventing this kind of bullying and harassment of LGBTI+ children.
Another key area for reform is LGBTI+ health rights.
Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.
As transgender advocate and lawyer Dale Sheridan told me:
While an approximate 10% Medicare rebate is provided for genital surgery, the treatment undertaken for most transgender and gender-diverse people is far in excess of this. For example, I have spent over $15,000 on four years of electrolysis to remove my facial hair, and there is no rebate available because this is considered cosmetic. However, having a beard does not match my female appearance and has caused much dysphoria.
The LGBTI+ community also lacks access to appropriate mental health care.
Under a Mental Health Care Plan, which can be granted by a general practitioner in Australia, individuals can access rebates for ten sessions with a psychologist per year. This is the case whether a person identifies as LGBTI+ or not.
However, this upper limit places a particular burden on the LGBTI+ community. Those who are LGBTI+ are more likely to experience poor mental health. LGBTI+ people aged 16 to 27 are five times more likely to attempt suicide compared to the general population.
The out-of-pocket expenses associated with regular mental health care are too great for many LGBTI+ people, particularly when you consider they are three times more likely to experience homelessness.
Particular groups face further burdens. For example, there is often very little awareness of specific issues facing the bisexual community. Visibility is a key advocacy priority. As bisexual advocate Misty Farquhar told me:
The mental health of bisexual people is incredibly poor due to the double discrimination we face, both from straight people and gay/lesbian folk. Our levels of psychological distress are second only to the transgender community, and the intersection of bisexuality and transgender identities is significant. We need to feel genuinely included and treated as equals, both in mainstream society and the LGBTIQ+ community. This can start to be addressed by genuine representation and targeted services.
Developing a national suicide and mental health strategy for LGBTI+ people could help to address some of these issues.
What is often forgotten about the LGBTI+ community is that many of us face intersectional and compounding forms of discrimination. This may be through our age, gender, race, disability or other attributes.
A 2018 report showed that 46% of people with a disability who identified as LGBTI+ had experienced discrimination, harassment or abuse in the preceding year. They were nearly five times more likely to be unemployed than LGBTI+ people without a disability.
LGBTI+ refugees seeking asylum in Australia are regularly required by tribunals and courts to name gay clubs in Sydney, answer questions about Madonna, and provide evidence of their sexual promiscuity. Sometimes, applications are rejected on the basis that an applicant does not “look gay”.
Furthermore, the experiences of older LGBTI+ people remain under-examined and stigmatised.
In any further steps to advance LGBTI+ rights, we must not forget the diversity of our community. We need to devote special attention to those facing intersectional, compounding forms of discrimination and rights abuse.
Overall, acting on the key areas outlined in this article would represent significant strides forward in promoting LGBTI+ rights in Australia. Though marriage equality was an important step, it was but one in a struggle that has a long way to go.
Authors: Liam Elphick, Honorary Research Fellow, Law School, University of Western Australia