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A victory on exemptions

By on February 28, 2013

The release last week of the Senate Legal and Constitutional Affairs Committee Inquiry’s report into the Human Rights and Anti-Discrimination Bill 2012 was a victory for the many LGBTI organisations and individuals who have been campaigning for protection for our community.

Of the 12 recommendations made, four relate directly to sex, gender and sexual orientation – and the recommendations were almost exactly what we wanted.

Importantly, the report recommends that intersex status be included as a separate protected attribute. It is clear that intersex people were not adequately protected under the draft Bill, nor are they under existing state and territory legislation.

Intersex people are some of the most marginalised in our community, and a bill that failed to protect them was clearly deficient.

Moreover, the committee also recommended that the draft Bill be amended to remove exceptions allowing religious organisations to discriminate in the provision of services, where that discrimination would otherwise be unlawful.

The GLRL has argued strongly for the roll-back of exemptions for religious organisations, particularly in the case of service provision, in places such as schools, hospitals and social service centres.

There is compelling evidence in Australia that LGBTI people’s access to education, health and social services is impeded by discrimination on the basis of sexual orientation, gender identity or intersex status. This recommendation recognises this fact, and seeks to redress it.

A further recommendation of the committee would require any organisation providing services to the public, which is intending to rely on religious exceptions, to make public their intention to rely on these exceptions. This is essential, as members of the public are entitled to know that there is a risk of discrimination if they engage with the organisation in any capacity.

Unsurprisingly, many religious organisations have reacted strongly to the changes, claiming that their right to freedom of religion would be breached if the amendments went ahead.

However, there is an important distinction between functions of an organisation which are inherently religious, such as the selection of priests, and those where the organisation is essentially acting as an extension of government in the provision of goods and services, particularly when they are funded by the government to do so.

Internationally, anti-discrimination law in countries including the UK, New Zealand and South Africa makes this distinction clear.

Closer to home, the Anti-Discrimination Act 1998 in Tasmania, which has operated successfully for the last fifteen years, only provides exceptions to religious organisations in a narrow sense. It is time our federal laws followed suit.

The recommendations do not make the bill perfect – for it would still provide religious exceptions in the context of employment, and it does not make provision for a dedicated Commissioner at the Australian Human Rights Commission to oversee matters concerning sexual orientation, gender identity and intersex status.

Nevertheless, if these changes make it through Parliament it would be a huge victory for our human rights.

It would mean that no school, no hospital, no aged care centre in the country – religious or not – could discriminate against those to whom it was providing services on the basis of sexual orientation, gender identity or intersex status.

The government will be deliberating on these recommendations this week. We urge them to accept them, and seek speedy passage of this Bill through Parliament before June.

We have fought for these reforms for many years – decades even. We should not have to wait any longer.

Justin Koonin •  NSW Gay and Lesbian Rights Lobby

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