Visibility remains one of the greatest challenges in tackling the legacy of state-sanctioned discrimination against people on the basis of their sexual orientation, gender identity and intersex status.
In the past 30 years we’ve made great strides in ensuring people are treated equally before the law and government simply because of who they are.
Led by John Gorton, the commonwealth parliament moved a motion to decriminalise homosexual acts in the mid-1970s.
During the 1980s, for the most part, Australia’s states enacted Gorton’s call. During the 1990s and 2000s the states covered sexual orientation in anti-discrimination law. In 2013, it was done at a commonwealth level.
These are all important achievements; but there is much more work to be done.
The Australian Human Rights Commission has just run a nation-wide consultation on the issues that affect people on the basis of their sexual orientation, gender identity and intersex status, or SOGII.
The objective of the consultation was to identify where the liberal human rights principle of equality before the law and government is not being met for lesbian, gay, bisexual, transgender and intersex Australians.
Unsurprisingly the most common theme, whether heterosexual or homosexual, was marriage.
For many, this issue reflects a mixture of basic fairness coupled with expectations of responsibility that society should encourage stable and enduring relationships.
A key objective of the commission’s consultations and the report we produced was to give oxygen and awareness to the issues that fly under the radar.
The debate around marriage is important, but it should not suffocate discussion about other issues that have an equal or greater impact on people’s day-to-day lives that need to be addressed.
It is the human stories that highlight how simple the aspiration many people have to live in a society where they feel equal before the law and government.
One respondent to the consultations wanted an Australia with “equality at all levels, no special rules for minorities but neither should there be any persecution for people’s preferences whatever they may be.”
Some ambitions were extremely modest. One person simply wanted to “be able to go outside, participate in sport and have employment.”
A common theme from participants was feeling safe to “hold hands down the street without people gawking or without even thinking it is a political statement.”
Importantly, people understood that rights come with responsibilities. One participant asserted their displeasure that “the ATO class my boyfriend as a partner for tax purposes but the rest of the government doesn’t recognise us”.
Underpinning these stories are human experiences of law and policy that has sanctioned discrimination.
Not all discrimination is equal.
Interpersonal discrimination occurs between individuals and is often legal and an exercise of people’s freedom, even if it is sometimes deemed unjust.
Institutional discrimination occurs when institutions, such as hospitals and schools, do not treat everyone equally. Some are within government, but many are not.
Structural discrimination principally occurs when government and law discriminate and is a fundamental breach of people’s human rights and equality before the law.
By using law and government to suppress the activities of people, the institutions of our society have also suppressed awareness of the issues of those affected by it.
The report released by the Australian Human Rights Commission on Wednesday, Resilient Individuals, gives voice to the areas of commonwealth and state law that create problems for LGBTI people, but also areas of policy and practice.
For example, there are still significant inconsistencies in state anti-discrimination law. The differences don’t reflect malice. They simply reflect the different times that laws were passed.
For example, NSW state anti-discrimination law covers discrimination against people on the basis of homosexuality, and not bisexuality. Many state laws don’t cover gender identity issues that impact on transgender people, or intersex Australians.
The commission has simply recommended these state laws be brought into the 21st century and roughly in line with commonwealth law that is more inclusive.
Recommendations also cover criminal issues, such as the recommendation for Queensland and South Australia removing the anachronistic “homosexual advance defence” that rationalises violence.
Others cover public health matters, such as Queensland’s unequal age of consent laws for different sexual acts that encourages lower testing rates amongst teenage gay males for HIV, blood borne viruses and sexually transmitted infections.
Importantly, the commission is going to work with bodies and institutions to ensure that relevant training and education is provided to assist social service practitioners understand the unique challenges for LGBTI Australians in areas such as health.
Addressing the visibility of issues that affect transgender and intersex Australians is particularly important for the ‘T’ and ‘I’ in LGBTI.
Transgender Australians face shocking rates of violence and suicide. The commission heard horrific stories of people facing bullying, harassment and violence simply for living their lives.
Data on the rates of violence is scarce. A key focus of the commission is to secure credible and reliable data sets on the rates of violence, and its causes, so it can be addressed.
There is also a need to work with states to remove unnecessary and cumbersome hurdles around changing a person’s gender identity on official documents.
Completely different issues arise for intersex Australians. In 2013 the Senate community affairs committee completed a report into Involuntary or coerced sterilisation of intersex people in Australia.
This landmark report looked at the issues faced by intersex Australians who are born with atypical sex characteristics, such as differing reproductive or sexual anatomy typically aligned to their gender.
The committee report made a number of recommendations, but many focus on ensuring that medical interventions on these children do not occur without fully informed consent.
Implementing the recommendations of this report go to the heart of bodily autonomy and improving informed consent for those with intersex variation.
Importantly, the recommendations from the report are not focused on promoting “group rights” or special legal privileges for people on the basis of SOGII. They are simply recommending that all Australians are treated equally before the law and government.