Williams, June --- "Western Australian Anti-Discrimination Laws and Proposals for Change" [1996] MurdochUeJlLaw 23; (1996) 3(3) Murdoch University Electronic Journal of Law

the assertion that homosexuals are entitled to human rights is not a claim for a new set of rights. Rather, it is to assert that homosexuals have the same rights as everyone else. [p.iv]

Male homosexuality has been decriminalised in most, but not all, Australian jurisdictions, and female homosexuality has, to my knowledge, never been a criminal offence. But not all states have acted to make discrimination on the basis of sexuality unlawful. In Western Australia and Tasmania a person can be lawfully discriminated against because of their sexuality even though they have done nothing unlawful. At the Federal level, legislation to make sexuality discrimination has recently been introduced in the Senate.

Note that legislation can only address discrimination in areas of public life. This applies to race, sex, impairment and other grounds of unlawful discrimination in the Equal Opportunity Act. "Public life" includes areas such as employment, education, accommodation, and provision of goods and services. So changing the law to make discrimination on the basis of sexuality unlawful in public life will not necessarily affect people’s behaviour in the private sphere.

New South Wales has gone so far as to prohibit the vilification of homosexuals. Such moves, similar to those dealing with racial vilification, often result in debates over freedom of speech versus the freedom of people to be free from abuse. In my discussion paper I did not make any specific recommendations with regard to vilification. Vilification does not exist in the Western Australian Equal Opportunity Act with respect to any other grounds. Some forms of vilification could be covered under the provisions relating to sexual harassment or covered by the relevant sections of the Criminal Code pertaining to incitement. Nevertheless, I consider it worth following the application of the vilification provisions in New South Wales and what changes, if any, in community attitudes towards homosexuality occur.

Equal opportunity laws often allow for exceptions. That is, it is lawful to discriminate on the basis of otherwise unlawful grounds in certain circumstances. Exceptions are usually made to protect the interests of particular groups (eg some restrictions on the hours of work than can be required of a junior worker) or to reflect a genuine need (eg a requirement that an Aboriginal role in play be performed by an Aboriginal actor). In contrast, some of the exceptions relating to sexuality that I have seen serve to undermine the basic principle of protection against unwarranted discrimination. Remember that much discrimination is based on stereotypes, assumptions and myths. As an example, the Queensland Anti-Discrimination Act provides the following exemptions:

It is not unlawful to discriminate on the basis of lawful sexual activity against a person with respect to a matter that is otherwise prohibited .... if -

1. the work involves the care or instruction of minors; and
2. the discrimination is reasonably necessary to protect the physical, psychological or emotional well-being of minors having regard to all the relevant circumstances of the case, including the person’s actions.

Such provisions serve to reinforce negative stereotypes of homosexuals. In my discussion paper I made the following comment:

it has been argued that [this section] reinforces the assumption that homosexuals ... are dangerous in whatever terms this is constituted, if they come into contact with children or minors in the course of their work. Hence, the simple fact of being homosexual disqualifies an individual from working with children. [p.32]

Some of the research for my discussion paper showed another form of double standard that applies to homosexuals. Some employers, who claim that they do not discriminate against homosexuals, said that they “tolerated” homosexual employees as long as the employees kept their homosexuality hidden. Not surprisingly, many of the employees considered that they were being discriminated against because they had to keep this aspect of their persona invisible. There seems to be an assumption about homosexuals flaunting their sexuality at customers and clients. I wonder how some of these employers react to or deal with the flirting and patronising attitudes that women sometimes experience when dealing with firms or departments. I wonder if they are as concerned with heterosexuals flaunting their sexuality in inappropriate situations? Probably not.

Pressures on homosexuals to keep their sexuality private can limit the effectiveness of laws that could offer some protection against discrimination. The Equal Opportunity Commission’s analysis of the use of complaints mechanisms, where they exist, suggests that some people may be deterred from using these mechanisms if they could result in their sexuality becoming widely known. Such fear of disclosure is not likely to be a factor in cases involving other forms of discrimination. Therefore, even though a person’s sexuality is not illegal, and even though the law may say they cannot be discriminated against because of their sexuality, community attitudes can still prevent a person exercising their full legal rights.

The state of the law in Western Australia as it stands is that discrimination on the basis of a person’s sexuality is lawful. The Government has said that it is concerned about the degree of polarisation in community attitudes as shown in the submissions responding to my discussion paper on this matter. Those who advocate changes in the law are probably well aware that even should the Equal Opportunity Act be amended that homosexual men and lesbians will still be subject to discrimination. Just as there will continue to be people behaving in racist or sexist ways, there will continue to be homophobes who will discriminate against homosexuals regardless of what the law says. The Equal Opportunity Act has not eradicated discrimination on grounds such as race, impairment or age, although it has, I believe, been reduced.

However, an important role of the Act is to provide an avenue of redress for those who have been discriminated against unlawfully. This redress is not available where a person’s sexuality has been the focus of discrimination.

Those who favour the inclusion of sexuality as an unlawful ground of discrimination in the Equal Opportunity Act have the onus of proving to the Government that this amendment is warranted. The Government has said that it wants to monitor community debate on this issue. By engaging in such debate, advocates of change can continue to promote their view. Note, however, that the opponents of change can be equally vocal and can also influence the outcome of proposals for change. Nevertheless, only by confronting the issues and arguments raised by various parties can the debate progress.