ࡱ> uwt%` cbjbj"x"x .~@@[%8<,2hTT"vvvQQQS2U2U2U2U2U2U2$<4h6~y2QQy2vv2!%!%!%vvS2!%S2!%!%r/T0vH 00#[{f30?2202A0"7 "70"70`Q :!%C?HQQQy2y2$^QQQ2dDdD Protection from discrimination on the basis of sexual orientation and sex and/or gender identity Submission to the 鱨վ from the Victorian Child Safety Commissioner Discussion Questions What benefit would there be in federal anti-discrimination laws prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity? What benefit would there be in federal law prohibiting vilification and harassment on the basis of sexual orientation and sex and/or gender identity? Can you provide examples of situations where federal protections from discrimination on the basis of sexual orientation or sex and/or gender identity are needed because state and territory laws do not provide adequate protections? Have you experienced discrimination because of your sexual orientation or sex and/or gender identity for which there is no legal protection? Have you experienced vilification or harassment because of your sexual orientation or sex and/or gender identity for which there is no legal protection? What terminology should be used in federal anti-discrimination legislation if protection from discrimination on the basis of sexual orientation is to be included? What terminology should be used in federal anti-discrimination legislation if protection from discrimination on the basis of sex and/or gender identity is to be included? What are the advantages or disadvantages of the terms used in state and territory laws, including: gender identity; chosen gender; gender history; a gender reassigned person; or a recognized transgender person; or transexuality? Should protection from discrimination be provided if a person has or appears to have the characteristics of any gender? What terminology should be used to ensure that people who identify as intersex are protected from discrimination in federal law? Should the term intersex be used? Should protection from discrimination on the basis of sex include people who are of indeterminate sex? What special measures designed to benefit specific groups based on sexual orientation and sex and/or gender identity should be allowed by federal anti-discrimination law? What other actions would you like to see the Australian Government take to better protect and promote the rights of LGBTI people in Australia? Federal Laws Commonwealth anti-discrimination law has very little, if any, effective coverage in relation to LGBTI rights (AHRC Research Paper, 2010). But the need for federal legislation to make it illegal to discriminate on the basis of sexual orientation and sex and/or gender diversity is clearly evident in the higher rates of mental illness, drug and alcohol abuse, depression, anxiety and suicide amongst Same Sex Attracted and Gender Questioning (SSAGQ) young people especially. The recently released Writing Themselves In 3 Report ( Hillier et al, 2010) documents the links between poor health outcomes and experiences of isolation and discrimination that are experienced by these young people, in rural and regional communities in particular. Discrimination The OCSC believes there is merit in federal anti-discrimination laws prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity, given the difficulties that result from the current patchwork of state and territory legislation covering these areas. There is an opportunity for the Federal government to demonstrate leadership on this issue and develop legislation that will provide broad coverage across a range of sectors, and protection for those areas where there may be gaps in state or territory legislation. Having a single set of federal legislation could also reduce the burden on individual state and territory legislatures and enable a broad policy framework to guide, for example, those sectors that are largely federally funded, such as education, health, housing and aged care. Such a framework would clearly spell out a prohibition of discrimination on these bases. It is also critically important that laws providing protection from discrimination are applied to all Commonwealth agencies, including those that have close contact with vulnerable young people, such as Medicare and Centrelink, who have a direct role in managing individuals personal situations. Enactment of federal legislation would also help to ensure there is increased awareness of the need for funded programs and services to cater for the needs of GBLTI communities. The Federal government could then be seen to be leading by example, demonstrating to young people an inclusiveness of those with diverse sexual orientations and sex and/or gender identities. Vilification and Harassment When implementing federal anti-discrimination laws prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity, it would seem quite appropriate to include a prohibition on vilification on these grounds. If discrimination on such grounds is illegal, it should also not be acceptable to provide communications that incite hatred towards, serious contempt for, or severe ridicule of a person or a group of people on the basis of their sexual orientation or sex and/or gender identity. For the purpose of establishing grounds for evidence of vilification, existing state and territory laws provide that such communications must have been heard, or potentially heard by the public, or must have been conduct that was, or could have been observable by the public, or that was conduct comprising the distribution of material to the public. The existing evidentiary threshold required for proof of vilification is quite high, with it being insufficient to demonstrate that the respondents conduct conveyed hatred or expressed serious contempt. Current legislation requires that the respondents conduct must have been capable, in an objective sense, of urging or arousing other people to feel hatred towards the complainant on the basis of their sexual orientation and sex and/or gender identity. It may be more appropriate to adopt the approach taken in the racial hatred provisions in the Racial Discrimination Act 1975 (Cth) and sexual harassment provisions across Commonwealth, state and territory legislation, which do not require the element of incitement. Given the high incidence of violence directed towards members of GBLTI communities (Chapman, 2010), it would also be prudent to consider incorporating an offence of serious vilification, where the vilification threatens physical harm towards a person or their property, or incites others to threaten such physical harm. It should not be necessary to establish that the perpetrator knowingly or recklessly incited hatred, or that a prosecution requires the consent of the Attorney General or Director of Public Prosecutions. Furthermore, the penalties for the offender should include maximum fines and the potential of imprisonment. Harassment of a person on the basis of their sexual orientation and sex and/or gender identity should also be prohibited, to ensure consistency in an approach of zero tolerance of discriminatory behaviour being directed at GLBTI community members. Characteristics Development of federal anti-discrimination legislation, including prohibitions on vilification and harassment, relating to sexual orientation and sex and/or gender identity should also include provisions relating to a perception that individuals fall within this group because they have particular characteristics, whether they self identify as such or not. There have been reported incidents of individuals being subjected to verbal abuse and physical violence based on the perception that they were members of the LGBTI community, when this was not actually the case. Exemptions It would seem greatly preferable that there are not exemptions included to justify discriminatory conduct on the basis of sexual orientation and sex and/or gender identity. Allowing a range of exemptions dilutes the strong message that is being advocated, that discrimination is an unacceptable practice, in whatever context it may occur. Those areas where exemptions currently apply in some states or territories are the same areas where the reported incidence of issues of discrimination have been very high, such as in employment, education and accommodation. For example, it seems there is a noticeable difference in the lack of discrimination experienced in Tasmanian Catholic schools (where no exemption applies) compared to the experience of teachers in New South Wales Catholic schools where there is an exemption. Similar evidence is available from the United States where jurisdictions that do not have state policies or laws protecting against discrimination and hate crimes have higher rates of mental illness (see for example, Hatzenbuehler, M et al, 2009, State-level policies and psychiatric morbidity in lesbian, gay and bisexual populations. American Journal of Public Health, Volume 99, No. 12).The presence of exemptions undermines the culture change that is being promoted by anti- discrimination legislation. If it is deemed absolutely essential that exemptions are included in federal anti-discrimination law relating to sexual orientation and sex and/or gender identity, then such exemptions should be the least number possible. Furthermore, it should be directed that such exemptions be interpreted as narrowly as possible. Provision of an exemption should only be by application, and also carry with it an exemption of provision of federal funding and the burden being placed on the exempt agency that this agency must advertise that it has sought and been granted an exemption. The current exemptions in relation to prohibitions on vilification would seem to be reasonable, being: the conduct was a fair report of a public act; or the conduct would be covered by the defence of absolute privilege in a proceeding for defamation; or the conduct was done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest. Examples of Discrimination It was not possible to provide examples of discrimination against young people on the basis of their sexual orientation and sex and/or gender identity, given that the OCSC is engaged primarily in policy rather than direct service work. However, what has become apparent during the research for this submission through consultation with those working in the field, is a lack of satisfaction young people have with the nature of current complaint procedures generally available to SSAGQ young people. Procedures, when available through agencies that deal with human rights and discrimination, are not designed to be child friendly and do not encourage young people to address issues in a forum where their voice will be heard in a supportive environment. A great deal could be done on a practical level to remedy this difficulty. Terminology Sexual Orientation The OCSC acknowledges that terminology is very important and that use of inappropriate terminology may be very disempowering. The OCSC is also aware that terminology can be a highly contested area, and many individuals from what are broadly termed LGBTI (lesbian, gay, bisexual, transgender and intersex) communities may actually prefer the use of a range of other terms to describe themselves. The OCSC believes it is very important for individuals to self identify using terminology with which they feel comfortable. The use of the term sex to describe whether a person is male or female needs to be qualified for those people who do not have a sex identity that is either male or female, or may not be exclusively male or female. Gender is a cultural expression of sex identity, which may not always be based on stereotypes of masculinity and femininity, and can be understood as a person looking, dressing or acting as male or female. Whilst some people do not have a gender identity that is either exclusively male or female, others do not have a gender identity that is linked to their sex. Young people may be more likely to describe themselves as SSAGQ (Same Sex Attracted and Gender Questioning) or SSAGD (Same Sex Attracted and Gender Diverse). In terms of when young people first identified as same sex attracted, in Hiller et als (2010) research, 10% stated that they has always known, 26% indicated they had known by the age of 10 years, 60% by the age of 13 and 85% by the age of 15 years. This finding has major implications for how sexuality education is presented in schools, and particularly in the earlier primary schooling years. The OCSC is aware that the term sexuality is not generally accepted as a preferred term for describing a persons sexuality, their sexual preference, or their sexual orientation. Sexual orientation is perceived as a term that has greater utility in describing inclusively the diversity present in the community, such as indeterminate orientation and asexual. However, it is very important that what is being meant by the term sexual orientation needs to be spelt out carefully in comprehensive detail, such as in the definitions and explanatory notes at the commencement of any legislation. This provides the opportunity for inclusion of a range of terms with which individual community members may be more comfortable identifying. Sex and/or Gender Identity and Intersex For those who identify as being intersex, their chromosomal, gonadal or anatomical sex is not exclusively male or female. However, a person who is intersex may or may not identify their sex and/or gender identity as intersex, with a range of other terms such as indeterminate sex being used. Taking into consideration the need to identify appropriate terms for use in legislation, the use of the phrase gender identity in existing state and territory laws would seem to not fit as well as the alternative term of sex and/or gender identity as used in the AHRC Discussion Paper (2010), indicating this would be the preferable term to use in any federal anti-discrimination legislation. Data Collection The use of inclusive terminology which reflects diversity is very important when practical applications are considered. Development of policy and provision of resources for funding programs is dependent upon having a robust evidence base as the foundation. There are estimated be about ten percent of young people aged 12-25 years in Victoria who are SSAGQ, which would indicate a number 96,000, a significant minority of the population (Hillier et al, 1996; Lindsay et al, 1999). However, for accurate data to be collected, appropriately targeted questions need to be asked in a child sensitive way, that elicits the information required, but assures that individuals cannot be identified. For example, it has been raised that the national census conducted by the Australian Bureau of Statistics does not ask questions in relation to sexual orientation and sex and/or gender identity, despite requests by advocacy groups for this to occur. Whilst it is understood that there would be many privacy and confidentiality provisions to be negotiated to achieve this outcome, the valuable data that would be generated could greatly assist with ensuring equality in service provision. Although many people might choose not to disclose their sexual orientation and sex and/or gender identity, leading to conservative figures, this might be expected to change over time as prohibitions on discrimination take effect. With the appropriate safeguards in place, the opportunity to self identify regarding sexual orientation and sex and/or gender identity could also play a very important role in areas such as the provision of health services. For example, in a number of areas, LGBTI communities are known to have higher rates of specific health issues such as mental health problems and higher rates of teenage pregnancies (see Writing Themselves In report, November 2010). Sue Hackney, Coordinator of WayOut, Rural Victorian Youth and Sexual Diversity Project, reports that there have been 6 suicides of gay young people in Victoria in the last nine years that she has been in this role. Although the young people were not connected to any of their services, some were known to the young people she works with. In order to address such issues and work towards the outcome of closing the gap, the ability for individuals to identify themselves in terms of sexual orientation and sex and/or gender identity would help ensure service responses that are flexible and responsive to their particular needs. For people to feel comfortable about doing this, the threat of discrimination, harassment or vilification on the basis of sexual orientation and sex and/or gender identity needs to be removed. Positive Measures It would seem appropriate to include equal opportunity measures, within anti-discrimination legislation on the basis of sexual orientation and sex and/or gender identity, which are designed to benefit groups identified with these attributes, with the objective of furthering equality (Chapman, 2010). Such measures might cover the provision of LGBTI police liaison officers, and health and wellbeing programs targeted at LGBTI communities such as the WayOut Rural Victorian Youth and Sexual Diversity Project, which seeks to build support through an alliance between gay and straight rural youth. Community Interconnection It is very important, that members of GLBTI communities are integrated within the mainstream community. Groups such as the Rainbow Families Network have argued that children, siblings and grandparents have been subjected to discrimination and harassment on the basis of the sexual orientation of their member parents. They are striving for an interconnected community where the threat of discrimination on the basis of sexual orientation and sex and/or gender identity is removed, and all community members human rights are respected. Other Actions School Based Education Programs It would seem that the most pressing action that needs to be undertaken by the Australian Government to better promote and protect the rights of LGBTI people in Australia, aside from legislative change, is tackling the issue of discrimination in Australian schools (see Writing Themselves In 3 Report, 2010). A very comprehensive community education program is required, with implementation being a core part of the curriculum that is closely linked with current anti-bullying programs and which commences in primary school. Schools are perceived by SSAGQ young people as the major source of discrimination, heterosexism, abuse and violence in their lives. The highly negative experiences that many young people have will scar them emotionally for the rest of their lives. The advice provided by young adults to their school aged peers is that it will get better after they leave school. This is of little consolation to them in the immediate term. They cannot wait until they leave school. They need to be safe now. Every student is entitled to feel safe and supported within their school environment, given respect, and their dignity preserved in accordance with their human rights. Every student has the right to reach their full potential both academically and in terms of their health and wellbeing, free from discrimination on the basis of their sexual orientation and sex and/or gender identity. One option that has proven popular with GLBTI advocates is the provision of a nominated teacher at each school who can provide a safe space and wants to support young people who are being bullied, which can be assisted with the downloading of a human resources program. It may be most appropriate for the 鱨վ to be jointly funded with community organizations to develop and implement such programs across schools. Sex Education Programs It is very important that the sex education program for all schools is overhauled to ensure it is inclusive of diverse sexual orientation and sex and/or gender identity issues, and that such programs commence in primary school. Any negative personal opinions expressed by staff or students must be addressed immediately, using clear frameworks of what constitutes appropriate behaviour and what is discrimination. Similarly, all organizations, both within the public and private sectors, need to be held responsible for their employees conduct. The organization needs to demonstrate that they have taken all reasonable steps to educate their employees about appropriate behaviour and to manage inappropriate behaviour. Youth Suicide Prevention As part of a closing the gap initiative, more resources need to be devoted to addressing the issue of youth suicide by SSAGD young people, particularly in regional and rural areas. The recent Youth Suicide Prevention Position Statement (October 2010) produced by Suicide Prevention Australia makes a number of recommendations for preventing suicide and suicidal behaviour in young people, as well as outlining current school based suicide prevention programs. Data Collection and Representation As discussed earlier, implementation of questions relating to sexual orientation and sex and/or gender identity on the national census by the Australian Bureau of Statistics would provide at least a conservative estimate of the LGBTI community and their distribution across Australia. Such de-identified data gives a starting point for development of equitable and accessible service provision that is responsive to the specific needs of GBLTI communities. Census figures would also assist in advocacy for representation of the GLBTI population within government policy frameworks and portfolio development, to ensure GLBTI communities have a voice and an avenue for their needs to be heard and responded to. Ideally, all government agencies and funded bodies would be required to demonstrate how they are meeting the needs of GLBTI communities and are inclusive of such communities, in a similar way to responding to cultural diversity or disability within the community. References Chapman, A. (2010). Research Paper. Protection from discrimination on the basis of sexual orientation or sex and/or gender identity in Australia. 鱨վ. AHRC (2010). Discussion Paper. Protection from discrimination on the basis of sexual orientation or sex and/or gender identity in Australia. 鱨վ. Hillier, L., Jones, T., Monagle, M., Overton, N., Ghan, L., Blakcman, J. & Micthell, A. (2010). Writing themselves in 3: The third national study on the sexual health and wel;lbing of same sex attracted and gender questioning young people. Melbourne, Australia: Australian Research Centre in Sex, Health and Society (La Trobe University). Hillier, L., Warr, D. and Haste, B. (1996). The Rural Mural: Sexuality and Diversity in Rural Youth. National Centre in HIV Research, la Trobe University, Melbourne. Lindsay, J., Smith, A., and Rosenthal, D. (1999). Secondary School Students, HIV/AIDS and sexual Health. Centre for the Study of Sexually Transmissible Diseases. Monograph Series Number 3. Australian National Council on AIDS and Related Diseases, Canberra. Racial Discrimination Act 1975 (Commonwealth) Suicide Prevention Australia (2010). Youth Suicide Prevention, Position Statement. Suicide Prevention Australia.     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