Human Rights Commission: a charter of change

Sometimes I read a report that seemingly seems to encapsulate much of what I and many others have sought for many years- to deal with entrenched discrimination, and to remove it.

 

This is what happened when Human Rights Commissioner Tim Wilson, an Abbott appointee, released a report about State sanctioned LGBTI discrimination in Australia, which he called to end.

On this, the 800th anniversary of the Magna Carta, it's apt to call the report a charter of change, because it sets out the necessary steps to end discrimination. The report sets out a great check list of what needs to occur. 

If only LGBTI people could confidently hold hands when out in public. As one respondent said: "There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partners in public without anyone batting an eyelid (as is currently the case for heterosexual couples)."

There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partners in public without anyone batting an eyelid (as is currently the case for heterosexual couples).

There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partnerHere is the summary:

Despite progress being made in recent years, LGBTI people continue to face a range of significant challenges in Australia including:

•      Poor community understanding and visibility of the distinct issues that affect people on the basis of SOGII status, particularly in relation to gender identity and intersex status.

•      State-sanctioned structural discrimination on the basis of SOGII status, which has flow on impacts in legitimising institutional and interpersonal discrimination.

•      A lack of cultural competency and understanding of the distinct needs of LGBTI people in the provision of public services, including education, health and aged care.

•      The intersection of the human rights of LGBTI people with the rights of others, notably in relation to religious freedom.

•      Attitudes from people from different cultural backgrounds that have a negative attitude toward SOGII issues and their rights, especially children during the developmental stage of their life when they need support.

•      Unacceptably high rates of marginalisation, bullying, harassment and violence.

 

The legacy of State-sanctioned discrimination is significant in its legitimisation of institutional and interpersonal discrimination across society. Governments have had a leading role in creating this culture, and so must also take a lead role in undoing it.

Some of the issues that remain to be addressed can be done so readily and easily. There are also more complicated and broader challenges around systemic and social discrimination against LGBTI people that must also be addressed.

Despite the concerning issues raised in the consultation, it should not be forgotten that there is significant room for

optimism. As the Case Studies in this report demonstrate, the LGBTI community is incredibly resilient. Individuals

are bringing about the change they want in the world through many successful and exciting initiatives to promote awareness and inclusion of SOGII issues, and often without any government support.

Through the consultation process, the Commission heard evidence of the impact of unjust discrimination in the delivery of government services, notably health and education, as

well as public participation in employment and sport. The experience of unjust discrimination remains a key barrier in advancing a culture of respect for LGBTI people. Removing unjust discrimination is vital to ensuring the LGBTI people feel confident to realise their full potential and maximise their contribution to Australian society.

The consultation raised significant issues regarding relationship recognition, families and protecting the best interests of children. It also identified specific, distinct barriers faced by trans and gender diverse people, intersex people, and Aboriginal and Torres Strait Islanders who are LGBTI.

To address the issues raised requires a variety of responses federally and at the state and territory level. This includes law reform, changes to policy and practice, the prioritisation of research and SOGII diversity training in professional settings.

To ensure all Australians are treated equally and fairly by the law and government, the following law reform should occur promptly at a Commonwealth level:

1.         Amendment of the Marriage Act 1961 (Cth) to equally recognise the partnership of two adult persons regardless of the gender of the partners.

2.         Alternative options be identified to the requirement of a Family Court Order for access to hormone treatment for children under the age of 18 (while continuing

to ensure there are adequate safeguards that take into account the opinion of relevant and appropriate medical practitioners and the views of the young person seeking treatment).

To ensure all Australians are treated equally and fairly by the law and government, the following law reform should occur promptly at a state and territory level:

1.         All states and territories should review the coverage

of SOGII issues in anti-discrimination laws and amend these laws as appropriate so that they are inclusive of different SOGII issues.

2.         In the interests of preserving resilient families and marriages, all states and territories should remove the requirement that married couples get divorced in order for one partner that is transitioning their gender to

have it acknowledged on official documentation.

1.    Provide a final 12-month extension for states to bring their laws into conformity with the Sex Discrimination Act 1984 (Cth), coupled with a clear statement that after July 2016 no further extension will be provided.

2.         In line with the High Court case of AH & AB v the State of Western Australia, all states and territories legislate to require that a self-identified legal declaration, such as a statutory declaration, is sufficient proof to change a person’s gender for the purposes of government records and proof of identity documentation.

3.         The Australian Capital Territory, Northern Territory, Queensland, Tasmania, and Western Australia legislate to expunge criminal records of historic consensual homosexual sex offences. That Western Australia

and the Northern Territory commit to schemes that expunge the criminal records of historic consensual homosexual sex offenses. That the Australian Capital Territory, Queensland and Tasmania implement intended schemes to expunge these criminal records. That South Australia develop an implementation process following the introduction of legislation to expunge these records.

4.         Queensland and South Australia legislate to abolish the homosexual advance defence.

5.         Victoria complete the repeal of section 19A of the Crimes Act 1958 (Vic) that creates a dedicated criminal provision for HIV.

6.         In the interests of promoting public health and ensuring testing for sexually transmitted infections, blood borne viruses and HIV, Queensland amend the age of consent to ensure the equal treatment of teenage gay males.

7.         Relevant state and territory laws be amended to ensure that parents can be recognised on birth certificates (regardless of their SOGII status) and in adoption processes.

8.         Northern Territory, Queensland, South Australia and Victoria amend laws to allow couples to adopt children based on their capacity, not their SOGII status.

9.         South Australia amend laws to ensure access to Assisted Human Reproduction Services is not restricted on the basis of SOGII or marital status.

Addressing the issues raised in these consultations also requires the cooperation of Commonwealth, state and territory governments to address cross-government law and practice. As a consequence, the following should occur promptly:

1.         All states and territories to develop and implement policies on the placement of trans and gender diverse prisoners in correctional services and for access to hormone therapy to be based on medically-identified need, not discretion.

2.         The establishment of a trans-specific policy stream across the health system to ensure that trans people do not face bureaucratic barriers to accessing healthcare, including:

•     the potential for rebates for necessary pharmaceutical and surgical treatments consistent with rebates enjoyed by all other Australians.

•     standardised treatment access and commencement policy for hormone therapy and gender affirmation procedures across state and territories.

3.         Implement the recommendations of the Australian Senate Community Affairs Committee’s 2013 Report on the Involuntary or Coerced Sterilisation of Intersex People in Australia, as well as consult with LGBTI people in responding to the Family Law Council’s 2013 Report on Parentage and the Family Law Act.

4.         The inclusion within family and domestic violence strategies of measures to address violence in same- sex relationships, and toward trans and gender diverse people.

5.         A review at the end of 2016 of complaints about SOGII issues lodged under the School Chaplaincy Program

to establish whether concerns about allegations of harmful practice are based in evidence.

Further, any consideration of the nation-wide ban on commercial surrogacy should be pursued without discrimination against people on the basis of their SOGII status, and should be guided in seeking to protect the best interests of the child and the surrogate.

  

8.         Northern Territory, Queensland, South Australia and Victoria amend laws to allow couples to adopt children based on their capacity, not their SOGII status.

9.         South Australia amend laws to ensure access to Assisted Human Reproduction Services is not restricted on the basis of SOGII or marital status.

 

The Australian Human Rights Commission has a key role working with other bodies to foster and implement change:

1.         Reducing rates of violence against LGBTI people is vital. The Australian Human Rights Commission will undertake a scoping project to explore available and potential data documenting rates of violence against LGBTI people to inform future work in this area.

2.         The Human Rights Commissioner will establish a religious freedom roundtable to bring together representatives of different faiths to identify how to recognise religious freedom within law, policy and practice in Australia. This will include, but not

exclusively focus on, SOGII issues. The Commissioner will maintain an ongoing dialogue with LGBTI representatives to identify how to appropriately balance religious freedom and the rights of LGBTI people to be treated equally under law and by government. When considering LGBTI issues, the roundtable will be guided by principles, including:

•     The extensive and significant common ground between religious communities and LGBTI people on the use of law of any accommodating competing rights.

•     The equal treatment by the law and government of LGBTI people and religious freedom and

that each of these considerations are equally important.

•     The need to protect the rights of all people at vulnerable stages of their life.

The roundtable will consider the scope of exemptions to the Sex Discrimination Act 1984 (Cth) for service providers to LGBTI people, particularly those who are delivering services funded by government such as in relation to healthcare, education and crisis intervention.

SOGII diversity training should also be developed and incorporated into:

1.         Medical, health science and allied health courses (through the university and vocational training sectors), as well as being included in the professional development of current medical practitioners via the Australian Medical Council and other health worker professional bodies.

2.         Teacher and welfare courses (through the university and vocational training sectors), as well as being included in the professional development of current practitioners via the Australian Teachers Federation and other professional bodies.

1.         The National School Curriculum, including information about sexual health for LGBTI people.

2.         Resources that build awareness of the specific therapeutic and medicinal needs of transgender and gender diverse people, targeted to those being trained and existing practitioners.

3.         Professional and community sporting codes, particularly for the inclusion of trans and intersex people.

To advance this training, the Australian Human Rights Commission will:

1.         Work with universities, vocational education providers and professional bodies (such as medical bodies and teaching associations) to undertake an audit of the inclusion of SOGII issues in the health and education fields. This audit will identify existing resources, where gaps remain, and how best to develop necessary resources to improve coverage of SOGII issues.

2.         Review the evidence-base on the experiences of trans, gender diverse and intersex people in sport, and engage in policy processes to promote better inclusion practices.

The following issues should also be prioritised for research by other bodies so we can better understand their full impact on the rights of LGBTI people:

1.         The nature, cause and effects of unconscious bias and direct discrimination against LGBTI people within the Australian healthcare system.

2.         The experiences of discrimination by intersex people in Australia.

3.         The specialist clinical service provision needs of trans and gender diverse people and how they could be better provided for by Medicare.

Given the lack of visibility of issues facing intersex people and Aboriginal and Torres Strait Islander peoples who are LGBTI, support should be provided for mechanisms to ensure their representation in public policy in Australia.