ࡱ> UWT%` a(bjbj"x"x 98@@9 '  80$ V7``(ccc6666666$&9h;6 cc6 7|  66n3 q6T `P^4 6D&70V7 5d(<d(<@q6(< q6 c|dccc66cccV7 D     The 鱨վ GPO Box 5218 SYDNEY NSW 2001 BY POST AND EMAIL: lgbti@humanrights.gov.au Dear Sir or Madam, Consultation: Protection from discrimination on the basis of sexual orientation and sex and/or gender identity Thank you for inviting the Anti-Discrimination Board of NSW (the NSW Board) to participate in the consultation about federal protection against discrimination on the basis of sexual orientation and/or gender identity. The issues raised in both the Discussion Paper produced by the 鱨վ (AHRC), and the Research Paper prepared by Anna Chapman from the University of Melbourne, are significant ones, and the NSW Board would welcome the development of federal legislation to improve the protection of individuals on the basis of sexual orientation and sex and/or gender identity. Please note that this response does not attempt to provide a comprehensive response to all the issues raised in the Discussion Paper and the Research Paper, but instead highlights issues of particular concern, interest or importance to the NSW Board. Terminology (section 2) The Discussion Paper acknowledges the significance of terminology in this area, and that the use of inappropriate terminology can be disempowering, and the NSW Board strongly agrees with this acknowledgement. Clearly, however, in the context of legislation, the use of terminology is of utmost importance, as it has the effect of conferring rights only on those individuals to whom a definition applies, and excluding from protection those who do not fit into the defined categories. Sex and/or gender identity and the Anti-Discrimination Act 1977 (NSW) (ADA (NSW)) Sex discrimination and transgender discrimination are dealt with in Parts 3 and 3A of the ADA respectively. In Part 3 (sex discrimination), section 23 of the ADA states that man means a member of the male sex irrespective of his age, and woman means a member of the female sex irrespective of her age. In the following sections (ss 24-38, which deal with sex discrimination), there are frequent references to "a man, a woman, or a person of the opposite sex. It is therefore arguable that a person who did not have a sex identity that was either male or female, or exclusively male or female would not be covered by these provisions. In Part 3A, which deals with transgender discrimination, the following definition is given at section 38A: A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person: (a)who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b)who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c)who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person. Whilst s38a (d) specifically contemplates that a person might be of indeterminate sex, the subsequent wording appears to require that such a person identify as a member of a particular sex. Again this means that a person who is intersex, or who did not identify as exclusively male or female, regardless of whether their anatomical, gonadal or chromosomal sex were considered to be indeterminate, would not be afforded the protections under Part 3A of the ADA (NSW). Please also see the NSW Boards comments on gender identity (below). Commonwealth marriage law (section 7.3) The NSW Board shares the Commissions view that formal relationship recognition, including civil marriage, should be available to same-sex couples on an equal basis with opposite-sex couples, and that Australia should recognise same-sex marriages entered into in other jurisdictions. The ADA (NSW) prohibits discrimination on the basis of marital or domestic status in the areas of employment, education, the provision of goods and services, accommodation and registered clubs (Part 4 ADA (NSW)). This protection extends to same-sex couples, although the scope of the protection is limited by section 54 of the ADA (NSW), which contains an exception for acts done under statutory authority. The NSW Board considers that any steps taken to legislate for improved protection for same-sex couples should be accompanied by a comprehensive review of other federal legislation (including the Marriage Act 1961 (Cth)) to remove any inconsistencies and allow the widespread application of any new discrimination law. Actions to be taken to protect LGBTI peoples human rights (section 8) The NSW Board supports the development of an action plan to protect the human rights of LGBTI people in Australia, including the educative and policy steps set out in the Discussion Paper. State and Territory protections from discrimination on the basis of sexual orientation (section 9(b)) Under the ADA (NSW) homosexual is defined as meaning a male or female homosexual. This definition may be limiting in respect of bisexual individuals, and it is also noted that some females, whilst falling within the legal definition of homosexual, are unhappy with the use of this terminology, preferring the term lesbian. The NSW Board notes the differences in terminology used by the various states and territories, and would support the adoption of a wider range of inclusions (such as homosexuality, bisexuality and lesbianism) in any proposed federal legislation. State and Territory protections from discrimination on the basis of gender identity (section 9(c)) One issue, of which the NSW Board is aware from its regular Sex & Gender Diversity consultation meetings, is that members of the intersex community feel that the ADA (NSW) does not protect individuals who identify as intersex. The NSW Board notes that the reference in several state and territory statutes to people of indeterminate sex is thought to encompass intersex conditions, however the feedback received by the NSW Board from its consultation meetings, is that some people who are intersex so not perceive this to be the case Whilst some of these intersex individuals might, arguably, be covered by the inclusion of people of indeterminate sex, it remains the case that the NSW definition potentially excludes many other members of the gender-diverse community from adequate protection from discrimination, in particular people who do not identify either as transgender, or as exclusively male or female. As a result, the Board would support the use of a broader and inclusive approach to defining a persons sex and gender identity in any proposed federal legislation. The USAs proposed bills definition of gender identity appears to be wider than that used in many Australian states and territories, yet even that definition refers to an individuals designated sex at birth. However it would appear that the practice of designating a sex to children who are born intersex is both controversial and descreasing in popularity, and increasingly that parents and medical professionals are allowing intersex childrens gender identity to develop independently. In this way, by involving the individual in decisions about their own identity, or whether to undergo surgery, it is hoped to avoid situations where individuals feel that surgery, or a particular identity, were forced upon them. The NSW Board would therefore suggest any definition be wide enough to also encompass individuals whom were not designated a sex at birth. State and Territory protections from vilification and harassment (section 9(f)) The NSW Board supports the Discussion Papers assertion that it is very difficult to prove vilification, and would support federal protection against vilification and harassment, which did not make it too difficult for individuals to assert their rights in this area. Thank you for the opportunity to participate in the Commissions consultation. Yours faithfully Elizabeth Wing Acting President, Anti-Discrimination Board of NSW Dated:     PAGE 1 PAGE 1 KLx? H @ D ` x ^bfj13Rzot/"'&w&''0(9(:(<(=(?(@(B(C(E(˹˩jh EUh E6CJOJQJ]^J%h E6B*CJOJQJ]^Jphh EB*CJOJQJ^Jph"h E56CJOJQJ\]^Jh E5CJOJQJ\^Jh ECJ^Jh Eh ECJOJQJ^JaJh ECJOJQJ^J2,9KLxy c d _ ` x ]^$1$a$ 9r 9(`(;<=>?T134  QRzT'd Q ]^T'd Q ]^`T'd Q ]^T$1$a$/0nost$% ""&&'&w&'''''''$1$a$'''(0(1(9(;(<(>(?(A(B(D(E(P(Q(R(](^(_(`(a(h]h&`#$E(F(L(M(N(O(P(R(S(Y(Z([(\(](`(a(h ECJOJQJ^Jh 0JmHnHuh Eh E0JmHnHu h E0Jjh E0JU70 PP&P . 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