LGBTI Federal Anti-Discrimination laws are a significant first step

Guest Contributor - 11th April 2013

By Heidi Yates-

The proposed introduction of ‘sexual orientation’, ‘gender identity’ and ‘intersex status’ as protected attributes under the Sex Discrimination Act (SDA) is a significant step forward for many lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

Over the past 17 years, these issues have been the subject of at least five government and parliamentary inquiries yet, for various reasons, legislation has never been introduced by the government of the day. The next three months present the ALP government with its best (and only) opportunity to deliver on its election commitment to provide discrimination protection to LGBTI Australian before we go to the polls. At the last election, similar commitments were made by the Coalition and the Greens, providing this minority parliament with a unique opportunity for tri-partisanship reform.

Last week, Professor Rice rightly articulated the various downsides of the SDA amendments, when compared to the proposed federal consolidation bill. However despite the SDA’s failings, I consider that for LGBTI Australians, inclusion in the SDA is all but ‘hollow’.  Rather, in lieu of a consolidated federal discrimination act, these long overdue reforms provide important, practical protections against discrimination for the first time at the federal level.

State and Territory laws already provide similar anti-discrimination protections for LGBTI people but use a patchwork of definitions, often leaving significant gaps in protection for transgender and intersex Australians. The proposed SDA amendments adopt best-practice definitions and set a national standard to prevent LGBTI Australians falling through the gaps. This national standard, which in part replaces the previous term ‘sexual preference’, should be rolled out consistently across relevant pieces of federal legislation (including the Fair Work Act) that do not currently provide adequate protection for LGBTI Australians.

The proposed amendments to the SDA will, for the first time, ensure that discrimination protections extend to the Federal Government, its agencies and employees. This has been a glaring gap since a 2008 High Court finding that state discrimination laws do not cover the federal arena, leaving gaps in protection for LGBTI employees and customers of major agencies such as Centrelink and Medicare.

Last week, when announcing this bill, the Attorney-General emphatically reminded Australia that it remained Government policy to ensure that religiously-run aged care providers do not discriminate in the provision of services. Such a statement is hardly revolutionary given Catholic Healthcare, Anglicare Australia and UnitingCare all have policies of non-discrimination and inclusion. Yet oddly, the Government has not yet addressed this issue in their bill.

Older LGBTI people, many of whom have faced discrimination throughout their lives, deserve bipartisan reassurance that they won’t face further unfavourable treatment at the hands of the people funded by Government to care for them in their twilight years. The Coalition’s George Brandis and Tony Abbott need to publicly declare bipartisan support for this aspect of reform which, as I’ve mentioned, remains strangely absent from this bill.

Indeed, as has been ably argued by David Marr, the existing Government policy to ensure aged care organisations cannot discriminate in service delivery should be extended to all organisations in service delivery, and to employment within those organisations. The Government has said it will consider the Senate Inquiry report recommendations. This includes a recommendation that religious organisations not be permitted to discriminate in the area of service provision and that where discrimination is permitted, that it occur with greater transparency than currently exists. One would hope such consideration could occur through amendments to this bill as it comes up for debate.

The proposed amendments to the Sex Discrimination Act, currently before a Senate Inquiry, are by no means preferred over the simplicity and coherence that a consolidated federal discrimination act would offer. Nevertheless, they are an important and long-awaited step in the right direction towards a society free where all LGBTI Australians can live their lives free of discrimination.

Heidi Yates is a Solicitor with the ACT Women’s Legal Centre and the Inaugural Chair of the ACT Government’s Lesbian, Gay, Bisexual, Transgender and Intersex Ministerial Advisory Council.

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