Australia’s evolving recognition of lesbian, gay, bisexual, transgender, and intersex (LGBTI) human rights has been the cause of much celebration. Indeed, if you were to follow mainstream media coverage of marriage equality, you would be forgiven for thinking that tying the knot is the only goal that is left for the vaguely defined “gay movement.”
Over the past two decades, a number of legislative changes have enabled same-sex couples to access partnership rights, benefits, and obligations in various areas like taxation, superannuation, immigration, and social security. Children in same-sex families have also been given much greater protection in areas like adoption, foster care, and same sex couples now have greater access to assisted reproductive technologies. In 2013, Australia passed amendments to the Sex Discrimination Act 1984 (Cth) to proscribe discrimination on the basis of sexual orientation, gender identity, and intersex status. Now, public attention is increasingly oriented around conscience votes and the promise of marriage equality. While our marriage laws undoubtedly remain a site of inequality, it would be remiss to ignore the many other pressing queer justice issues.
So what are some of the persisting legal and policy challenges?
Anti-discrimination laws continue to vary across state and territory jurisdictions and problematic exceptions exist in the laws. In NSW, discrimination and vilification is prohibited on the basis of homosexuality and transgender status. Though, discrimination of the bases of intersex and bisexuality is not explicitly addressed in the relevant statute. Moreover, faith-based organisations are enabled to discriminate against sexual and gender minorities where their religious sensibilities would be “injured.” For example, a publicly funded religious aged-care service could exclude same-sex couples for residential care.
There are specific exceptions in NSW for private educational authorities which enable a student to be expelled for “coming out” or for expressing a non-conforming gender identity. Bullying is rife in schools. In the past few years, a number of programs such as the Safe Schools Coalition have explicitly sought to respond to the alarming rates of homophobia and transphobia by promoting diversity in schools. Yet, these encouraging commitments will have little impact in terms of ensuring safety where the law casts a shadow over the discrimination and exclusion that many still face.
After all, how can you feel safe when the law reinforces your precarity?
It does so because the exceptions operate on widely discretionary basis. Exceptions do not need to be advertised and can be relied upon at any time according to the tenets of the particular religious group involved. Given the disparate denominational systems which exist in any religion and their differing views on LGBTI people, you basically have to take your chances and hope for the best. This does not have to be the case. Tasmania, for example, provides much more robust coverage of LGBTI characteristics without the specific exceptions.
In pursuing reforms, we must remember that LGBTI rights cannot be reduced to the first two letters in the acronym. Despite recently developed Australian government guidelines, legal recognition of gender remains cumbersome for many depending on the particular administrative requirements of a state or territory.
“Australia prides itself on its commitment to freedom and condemns human rights abuses that take place elsewhere. In the same breath, however, it undermines the ability of LGBTI refugees to seek protection here.”
Earlier this year, in the Norrie Case, the High Court found that a person who had undergone a “sex affirmation procedure” and who did not identify as male or female could be registered with a “non-specific” sex in NSW. While the case was heralded as a victory for non-binary gender recognition, it also worryingly conflated sex with gender. For example, many gender non-conforming people do not want (or cannot access) medical interventions to express their gender. Yet, the case reiterated the need to undergo a surgical procedure to register a change in “sex.” More insidiously, the statutory requirement that a person be “unmarried” to amend their sex means that some married couples are put in an impossibly cruel situation: divorce or be denied appropriate gender recognition.
Other jurisdictions have moved to enable people greater freedom to self-identify. The ACT, for example, recently amended its birth certificate laws by removing the requirement for a surgical procedure in order to register a change in sex. We need to let go of laws that police gender.
Individuals are subject to body policing from the moment they are born. Many intersex infants undergo coercive medical procedures to “correct” their anatomical or hormonal differences. Infants have their genitalia irreversibly “fashioned” in order to conform to heterosexually inflected stereotypes about men and women. We abhor and criminalise female genital mutilation. Yet, intersex infants are routinely subject to myopic mutilation with little legal oversight because we still insist upon a causal link between a person’s sex and their gender identity (and even sexual orientation). Last year, the Senate Standing Committee on Community Affairs recommended that such “therapeutic” reconstructions be deferred until a person is able to give consent. Such a recommendation seems basic if intersex people are to be afforded the bodily autonomy and integrity that so many of us take for granted.
Australia prides itself on its commitment to freedom and condemns human rights abuses that take place elsewhere. In the same breath, however, it undermines the ability of LGBTI refugees to seek protection here. The absence of adequate training and guidelines results in the veracity of LGBTI asylum applications being determined by improper questions about sexual experience or popular culture. (Hint: if you seek asylum for being gay you had better brush up on your Madonna songs and read a few Oscar Wilde novels.)
Asylum seekers who now arrive by boat are subject to detention and resettlement in Papua New Guinea, a country that criminalises homosexuality with penal sentences of up to 14 years. Amnesty International recently reported that gay asylum seekers on Manus Island are coercively closeted, as they fear disclosure of their sexual orientation or sexual activity could place them at further risk of violence or harassment. Our policies enact a brutalising irony: gay asylum seekers either disclose their identity and risk persecution on Manus Island or remain silent and be returned to persecution in their home country. In one letter written by an Iranian man, he stated: “I am so sorry I was born gay … I wish our boat had sunk in the ocean.” Our policy stance would seem comical if it was not painfully real. Australia’s pursuit of “deterrence” undermines its international protection obligations by willfully sending refugees to places where their lives or liberties are threatened.
In the last month, legislation has been introduced to rewrite Australia’s refugee obligations for those who apply onshore too. Of particular concern to queer asylum seekers is the introduction of a requirement that decision makers will need to determine what is “fundamental” to identity. By eroding the reach of landmark asylum jurisprudence, this legal test could lead to the return of refugees who are asked manage their sexual or gender expressions more discreetly to avoid persecution.
So where to from here?
It’s clear that a number of legislative changes are needed to better protect the rights of all LGBTI people. Social justice, however, is not delivered to us by reforms alone. This does not mean we should abandon our enduring commitments to legal change (particularly in the areas I have just outlined). But, we need to recognise that formal equality does not guarantee substantive dignity or freedom.
We also need to appreciate that our communities assemble across a range of other social lines such as race, religion, disability, class, and age, to name just a few. We belong to different communities. We all have different political visions. Instead of trying to reduce our differences to make a homogenous “gay rights agenda,” we need to find ways of navigating between them to pursue our mutual desires for social change. That is one future for justice.
Senthorun Raj is a doctoral researcher at the Sydney Law School.