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Murdoch University Electronic Journal of Law |
Australian Anti-Discrimination Law and Sexual Orientation: Some Observations on Terminology and Scope
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Click on the image at left for a 1.0 MB QuickTime video clip of Anna Chapman speaking. |
Acknowledgement[1]
Apart from Tasmania and Western Australia, all states and territories in Australia have enacted legislation that renders discrimination related to sexual orientation unlawful.[2] In addition to this state and territory law, federal legislation offers a mechanism of redress in relation to some instances of discrimination on the ground of sexual orientation. The federal Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides a procedure by which the Human Rights Commissioner may attempt to conciliate complaints of sexual preference discrimination in the paid workforce.[3] Federal industrial relations legislation prohibits dismissals, and provisions in awards and workplace agreements, that discriminate on the ground of sexual preference.[4]
This body of law comprising state and territory anti-discrimination statutes and the federal Human Rights and Equal Opportunity Commission Act has largely failed to live up to the expectations of many of its proponents. Not only is this legislation (and law generally) wholly inadequate in itself to bring about the type of social transformation necessary for a positive valuing of sexuality diversity, this legislation is, moreover, even deficient in terms of the more limited project of providing redress to people who are on the receiving end of discriminatory conduct related to their sexuality.[5]
The reasons explaining this limited role of the legislation are numerous and interrelated. Some of them appear specific to sexual orientation grounds. Others limit the impact and usefulness of the legislation in relation to all grounds. They involve most fundamentally the liberal framework underlying anti- discrimination jurisdictions with its emphasis on formal equality and negative concepts of tolerance and freedom.[6] Other factors operate within this liberal framework to reduce the role of the legislation. Many of these matters relate to issues of terminology and scope under the different statutes. The purpose of this article is to highlight some of these concerns.
Terminology
One factor implicated in the inadequacies of the sexual orientation provisions is the wording used in the legislation to name these grounds.
Three statutes use the terminology of 'sexuality'. The Australian Capital Territory statute defines its ground of sexuality as 'heterosexuality, homosexuality (including lesbianism) or bisexuality'.[7] The South Australian legislation defines sexuality to be 'heterosexuality, homosexuality, bisexuality or transsexuality'.[8] The Northern Territory statute uses sexuality to mean 'the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality'.[9]
The New South Wales legislation provides a ground of 'homosexuality' (defined to mean a 'male or female homosexual').[10] It also prohibits homosexual vilification.[11] Queensland and Victoria include grounds of 'lawful sexual activity'.[12] Federal legislation refers to 'sexual preference'.[13]
Several aspects of these definitions are open to criticism. The lack of explicit inclusion of lesbianism is problematic. The Australian Capital Territory Act is the only statute that uses the word lesbianism.[14] Apart from this Act, lesbianism is subsumed under the label of homosexuality in the various statutes. This approach is inadequate. The word homosexuality has been, and continues to be, commonly interpreted to refer to same sex sexual activity between men.[15] Support for the view that the word homosexuality is seen as fundamentally male is found in the different lodgement rates under sexual orientation grounds of women compared to men. Far fewer women than men lodge complaints under such grounds.[16] These differences do not appear to be explicable in terms of the incidence of sexuality discrimination and harassment of women compared to men; women who identify as lesbian experience similar rates of discrimination and harassment as do men who identify as gay.[17] The difference in lodgement rates appears, at least partly, to reflect a gender dimension in access to grounds worded as homosexuality.[18] No doubt it also reflects different access to law generally by men and women.[19]
This problem of using the label homosexuality as implicitly inclusive of lesbians has been noted and examined by the Anti-Discrimination Board of New South Wales on more than one occasion. In 1987 the Board held a forum to investigate discrimination against lesbians in New South Wales and to formulate recommendations for improving the Anti-Discrimination Act 1977 (NSW).[20] The establishment of this forum was partly in response to a recognition that women have lodged less than 35% of the annual number of complaints under the New South Wales homosexuality ground. The report of the proceedings contains a number of accounts of lesbians being unsure of whether the homosexuality ground applies to them and of feeling devalued by the wording of the ground. One of the key recommendations of the report was to amend the New South Wales Act to replace all references to 'homosexuals' with the words 'lesbians and homosexual men'.[21] This recommendation has not been implemented.
The importance of explicitly naming lesbianism in the statute was again raised with the New South Wales Board in 1994 as part of its general review of the Act. The response of the Board was to recommend that homosexuality be defined in the statute to include a reference to female homosexuality as well as to male homosexuality.[22] The NSW statute has since been amended in line with this recommendation and a definition of homosexual ('male or female homosexual') was inserted into the definition section of the Act (section 4(1)) in August 1994.[23] This amendment fails to go far enough. The word lesbianism ought to be explicitly used in the substantive provisions of the Act proscribing discrimination and vilification related to homosexuality (Part 4C). Including a reference to 'female homosexual[s]' in the definition of homosexual in section 4(1) of the Act does little to address misperceptions about the coverage of the New South Wales jurisdiction in relation to lesbians and the concern expressed at the forum that the word homosexuality fails to value lesbian existence.[24] Although the 1994 amendment is an inadequate response to this deficiency, the history of this issue in New South Wales does illustrate that using the label homosexuality to implicitly refer to lesbians is flawed. This was acknowledged by the NSW Board as recently as 1994.
The Commissioner for Equal Opportunity (WA) has also acknowledged the problems inherent in subsuming lesbianism under the label of homosexuality. In 1994 the Commissioner noted that 'the use of terms, such as homosexuality as a ground in anti-discrimination legislation to proscribe homosexual discrimination, further marginalises the experience of lesbian women'[25] and later that 'for many lesbians who experience discrimination on the basis of their sexuality, the term [homosexuality] is of little relevance and application.'[26] Given this, it is extremely disappointing that in her recommendations, the Commissioner failed to address this problem articulated in her Discussion Paper. Her report recommends the inclusion of a sexuality ground worded as 'heterosexuality, homosexuality, bisexuality and transsexuality.'[27]
One wonders what it will take to shift administering bodies such as the New South Wales Board and the Western Australia Commissioner from a position acknowledging a problem to one recommending a solution. The amendment required here is, after all, obvious and relatively straightforward - the explicit use of the word lesbianism both in the name of the ground and the body of the Act. The lack of resolve shown by the Board and Commissioner in this respect is particularly frustrating as the recommendations of such bodies appear to be an important precursor to the immensely more difficult task of convincing the relevant government to introduce the legislation.
The definitions of sexuality are problematic in another respect. The lists of sexualities in the statutory definitions appear to be in some kind of order. Heterosexuality is always first in the list and transsexuality, where it is included, is last. This is clearly not an order placing those most likely to need the Act first. Heterosexual people are rarely discriminated against on the ground of their heterosexuality.[28] Transgender people experience, by contrast, shockingly high rates of discrimination, harassment and violence.[29] The conclusion is compelling that the sequence in each definition constructs a hierarchical order that centres heterosexuality and includes 'other' sexualities in an order of increasing marginalisation.
The Queensland and Victorian statutes use the terminology of lawful sexual activity. Both Acts are clearly intended to apply to people who identify as gay or lesbian, though neither actually use those words nor the words homosexuality or lesbianism. Using the formula of lawful sexual activity maintains a legislative silence around lesbians and gay men. Lawful sexual activity 'sees' lesbian and gay existence only as an activity, that is, something that people do rather than who people are in terms of identity and community. It reduces lesbian and gay existence to sexual acts.
The inclusion of the word lawful in the name of the ground infers that there is something inherently unlawful about same-sex sexual conduct. This inference attaches to lesbians and gay men rather than, for example, heterosexual people, because the lawful sexual activity ground is largely recognised, both in public discussions[30] and in Parliament,[31] as the gay and lesbian ground. Although the other activity grounds in the new Victorian Act ('industrial activity', 'political activity' and 'religious activity') are qualified in their definitional sections to refer to lawful activity only, the lawful sexual activity ground includes the word lawful as part of the name of the ground. This sends a clear message, repeated every time the ground is named, about the propensity to unlawfulness of gay men and lesbians. The message from the Queensland Parliament is even more damning. The other activity grounds in the Queensland Act ('political ... activity' and 'trade union activity') are not qualified by the rider lawful at all. The inclusion of the word lawful then, in the two statutes sends a very clear message both to the general public and to gay men and lesbians who might be contemplating lodging a complaint that there is something inherently suspect, and reprehensible, about same-sex sexual conduct.
The above aspects of the language used in the different statutes to name the sexual orientation grounds impair the effectiveness of this legislation. Amendment is accordingly required. In addition to issues of terminology, the ambit of the different statutory schemes is an important factor limiting the role of the legislation.
Scope of Prohibited Conduct
A number of factors curtail the range of conduct that is rendered unlawful under the different statutory schemes. Importantly, none of the statutes include same-sex relationships as de factos or as otherwise within the meaning of marital status. In addition, several exemptions may take effect to exonerate otherwise discriminatory conduct.
(a) Same-Sex Relationships
No anti-discrimination statute in Australia recognises same-sex couples as de factos or as otherwise within the meaning of marital status. All explicitly define de facto relationships and/or marital status in terms of people of the opposite sex living together.[32]
The sexual orientation grounds described above proscribe discrimination against individual people[33] and as such have provided an uncertain basis for arguments relating to couple relationships. In Wilson v Qantas Airways Limited[34] the New South Wales Equal Opportunity Tribunal dismissed complaints lodged by 2 gay male couples of discrimination on the ground of homosexuality and/or marital status. All 4 men were flight attendants employed with Qantas. Each couple had been denied access to the 'married roster' conducted by the airline. The roster provided for married and heterosexual de facto couples to be given preference in the allocation of flights so that they may be rostered together. The reasoning of the Tribunal in dismissing the complaints was incoherent. In relation to the claim on the ground of marital status the Tribunal described the complainants as 'single males'[35] and found that '[t]hey have not been discriminated against because they are single'.[36] In relation to the claim of homosexuality discrimination, the Tribunal held that '[t]heir homosexuality as such clearly did not bar them from being participants in the scheme. Indeed it may well have been that persons participating in the scheme are homosexual.'[37]
In the more recent decision of Hope v NIB Health Funds Ltd[38] the New South Wales Tribunal found in favour of a gay male couple on the ground of homosexuality when their application for concessional 'family' health insurance was rejected by NIB Health Funds. The Tribunal found that had one of the complainants been a person of the opposite sex living in a bona fide domestic relationship with the other complainant, the concessional family rate would have applied.[39] As to its earlier decision in Wilson v Qantas Airways, the Tribunal commented:
We doubt the correctness of the decision in Wilson v Qantas Airways but assuming the decision is correct it is distinguishable in that here the homosexuality of the Complainants was the significant factor in the decision to refuse them concessional status.[40]
Hope is currently on appeal before the New South Wales Supreme Court.
Other provisions in anti-discrimination statutes might, in practice, offer the potential to protect lesbians and gay men in relation to issues arising in couple relationships. For example the protection afforded to people who are associates of a person with a protected attribute and the provisions in relation to carers may provide protection to lesbians and gay men in relation to couple relationships. Importantly though, none of these provisions protect the relationship as such. For this reason the Supreme Court decision in Hope will be important.
(b) Exemptions
A number of different exemptions and exceptions reduce the scope of the sexual orientation grounds in the different statutes. These provisions take effect as a form of defence able to be argued by the alleged discriminator (the respondent). If the respondent is successful in establishing that the exemption applies, his/her conduct is exonerated. In addition to reducing the ambit of the statutes, the existence of these exemptions and exceptions appears likely to be a factor discouraging potential gay and lesbian complainants from lodging a complaint. Some of these exemptions convey powerfully subordinating images of lesbians and gay men and appear based on the very prejudice and stereotyping that the legislation purports to be aimed at eliminating.
Some of the main exemptions include provisions relating to working with children,[41] less favourable treatment based on the complainant's dress, appearance (and behaviour),[42] the religious practices of religious institutions,[43] conduct in compliance with religious beliefs,[44] work in a private household,[45] and work in small businesses with five or less employees.[46] The working with children exemptions, the exemptions relating to standards of dress, appearance and behaviour and the religious beliefs exemption are examined.
(i) Working with Children
The Queensland, Northern Territory and Victorian statutes contain exemptions relating to working with children.
Both the Queensland and Northern Territory statutes excuse an employer from an act of discrimination under the relevant sexual orientation ground if the employer is able to show that the work involves the care or instruction (or supervision) of minors (persons under 18 years of age) and the discrimination is reasonably necessary to protect the physical, psychological or emotional well-being of children having regard to all the relevant circumstances of the case, including the person's actions.[47] This exemption relates solely to the sexual orientation grounds in the Queensland and Northern Territory statues. This means that it can only be argued by an employer by way of defence to a complaint under a sexual orientation ground, it cannot be argued in relation to other grounds such as sex, race or impairment.
The new Victorian statute contains an exemption that excuses discrimination by an employer where:
the employment involves the care, instruction or supervision of children (defined as people under the age of 18 years); and
the employer genuinely believes that the discrimination is necessary to protect the physical, psychological or emotional well-being of the children; and
having regard to all the relevant circumstances, including, if applicable, the conduct of the employee or prospective employee, the employer has a rational basis for that belief.[48]
It seems that this Victorian provision was originally intended to be specific to the lawful sexual activity ground, but was later extended to apply, at least notionally, to all grounds.[49] This appears to have been an attempt to head off objection to it by gay and lesbian lobby groups. Although the Victorian Government has strenuously denied that the provision is aimed at lesbians and gay men who work with children, it has been treated as such in media reports.[50]
These working with children exemptions sanction discrimination against lesbians and gay men. Although the wording of these provisions is convoluted and ambiguous, they are clearly premised on the view that gay men and lesbians as a group pose a risk to children that is not present when the members of other groups, whether defined by gender, race or impairment, work with children. The exemptions confirm and so lend credence to the myths that gay and lesbian teachers attempt to 'convert' young heterosexual adults to gay/lesbian sexuality and/or that gay and lesbian teachers sexually abuse children.[51]
These provisions are additionally damaging in that their existence acts to discourage potential complainants who work with children from lodging a complaint. There appears to be a view amongst some gay and lesbian teachers that if they have been identified as gay or lesbian to students or have provided information to students that is seen as affirming gay and lesbian sexuality then they will lose their protection under the Queensland Act. In the words of a gay teacher in Queensland: 'if a kid comes up and says they're gay, you can't say its okay, you can't help them go through the hassle to be open or you could ... [lose your protection under the Queensland statute due to the operation of] section 28'.[52] It seems likely that a similar view has formed amongst Victorian gay and lesbian teachers.[53] In this way these provisions operate to suppress the visibility of gay and lesbian teachers in schools. Such teachers may feel the need to censor their conversations about the weekend, refer to their partner as their flatmate or otherwise engage in an on-going process of duplicity both with other members of staff and with students. Not only is this discriminatory in itself (heterosexual teachers are not required to self- censor in this way), it is profoundly damaging.
(ii) Standards of Dress, Appearance and Behaviour
Provisions in the South Australian statute and the Victorian Act relating to dress, appearance and behaviour also operate to censor and contain the extent to which gay and lesbian sexuality is visible in workplaces and schools. The South Australian statute exempts discrimination on the ground of sexuality that is reasonable in all the circumstances and which is based on appearance or dress that is characteristic of, or an expression of, that person's sexuality.[54] The new Victorian Act permits employers and educational authorities to set and enforce reasonable standards of dress, appearance and behaviour for employees and for students.[55] The Victorian statute provides that such codes in schools must be taken to be reasonable if the educational authority has taken into account the views of the school community in setting it.[56] As with the working with children exemption, it appears that this defence in the Victorian Act was originally intended to apply to the lawful sexual activity ground only,[57] but was later extended to apply to all grounds in an attempt to disguise its nature as reflecting prejudice and stereotypical views of lesbians and gay men.[58]
The former South Australian Commissioner for Equal Opportunity has expressed the view that the South Australian exemption is 'inherently discriminatory' because it reflects stereotypical concerns about the behaviour of gay men and lesbians.[59] As with the working with children exemptions these defences relating to dress, appearance and behaviour operate to suppress the visibility of lesbians and gay men in schools and workplaces. These provisions confirm that the only acceptable face of sexuality is heterosexuality. Whereas wedding rings and photos of spouses on desks may be seen as a sign of stability and maturity in heterosexual workers, lesbian and gay jewellery and photos of partners are unlikely to be seen in a similar light. In this way these provisions relating to dress, appearance and behaviour are themselves discriminatory.
In addition, as with the working with children exemptions, the existence of these dress, appearance and behaviour defences are likely to discourage gay men and lesbians in Victoria and South Australia from lodging complaints. It appears likely that many instances of discrimination against lesbian and gay workers potentially contain arguments by an employer relating to the visibility of that person's sexuality manifested in their dress, appearance and behaviour.
(iii) Religious Beliefs
All the anti-discrimination statutes referred to in this paper contain exemptions relating to religious institutions. These exemptions refer to the practices of religious bodies (including schools) that conform with the doctrines of the religion and/or are necessary in order to avoid injury to the religious susceptibilities of people of that religion.[60] These provisions, objectionable as they are, are relatively benign in comparison with section 77 in the new Victorian statute.
Section 77 of the Equal Opportunity Act 1995 (Vic) contains a widely worded provision which is unique in Australian equal opportunity jurisdictions. It exempts discriminatory conduct where a respondent is able to establish that 'the discrimination is necessary for the ... [respondent] to comply with the ... [respondent's] genuine religious beliefs or principles'.
This provision is not limited to the effect of religious beliefs on conduct taking place within religious institutions such as schools, Universities and hospitals. It extends to discriminatory conduct in all paid work arrangements, the provision of goods and services and all other areas of life covered by the Act. Nor does the exemption appear limited to the religious practices of mainstream churches, or even the religious practices or beliefs held by the leadership of the religion in question or most adherents to that religion.
As with the other exemptions discussed above, this religious beliefs exemption operates on a number of different levels. It significantly curtails the scope of the Victorian Act, it suppresses the visibility of lesbians and gay men in all aspects of life covered by the Victorian Act and it is a factor dissuading potential gay and lesbian complainants from lodging a complaint of discrimination under the lawful sexual activity ground in the Victorian statute.
Conclusion
This article has highlighted a number of deficiencies in the existing legislative schemes that proscribe sexual orientation discrimination. The issues of terminology and scope addressed in this article indicate a fundamental mismatch between the content of the law in this area and the needs of the people whom the grounds purport to protect. Legislative amendment is clearly needed.
Two jurisdictions do not even contain sexual orientation grounds. Sexuality grounds ought to be included in all Australian jurisdictions (including federal law) and such enactment should be in a form that addresses the shortcomings of existing jurisdictions.
Anna Chapman B Com LLB (Hons) LLM (Melb)
Lecturer in Law
Centre for Employment and Labour Relations Law
Law School
University of Melbourne
Notes
[1] I wish to thank Wayne Morgan for his comments on an earlier draft of this article.
[2] Equal Opportunity Act 1995 (Vic) s 6(d); Anti-Discrimination Act 1977 (NSW) Part 4C; Anti- Discrimination Act 1991 (Qld) s 7(l); Equal Opportunity Act 1984 (SA) s 29(3); Discrimination Act 1991 (ACT) s 7(b); Anti-Discrimination Act 1992 (NT) s 19(c).
[3] Human Rights and Equal Opportunity Commission Act 1986 (Cth), Human Rights and Equal Opportunity Commission Regulations (Cth) (SR No 407 of 1989) reg 4(a)(ix).
[4] Industrial Relations Act 1988 (Cth) s 150A(2)(b), s 170DF(1)(f), s 170MD(5) and s 170ND(10). Note that some of these provisions are under review: Senate Economics References Committee, Report on Consideration of the Workplace Relations and Other Legislation Amendment Bill 1996 (Aug 1996). Federal legislation proscribing discrimination and vilification on the ground of sexuality and transgender identity has been proposed by the Australian Democrats (Sexuality Discrimination Bill 1995 (Cth)). This Bill is currently before the Senate Legal and Constitutional References Committee.
[5] See generally, Anna Chapman, 'Sexuality and Workplace Oppression' (1995) 20 Melbourne University Law Review 311.
[6] See further Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford Uni Press, Melbourne 1990); Wayne Morgan, 'Still in the Closet: The Heterosexism of Equal Opportunity Law' Critical InQueeries Vol 1 No 2, May 1996, 119.
[7] Discrimination Act 1991 (ACT) s 7(b), s 4(1) definition of 'sexuality'. The Act provides 'transsexuality' as a separate ground: s 7(c) and the s 4(1) definition of 'transsexual'.
[8] Equal Opportunity Act 1984 (SA) s 29(1)(b), s 5(1) definition of 'sexuality'. 'Transsexuality' and 'transsexual' are defined in s 5(1). The West Australian Commissioner for Equal Opportunity has recommended the inclusion of a sexuality ground defined as 'heterosexuality, homosexuality, bisexuality and transsexuality' to be included in the Equal Opportunity Act 1984 (WA): Commissioner for Equal Opportunity (WA), Discussion Paper No 3: Discrimination on the Basis of Sexuality (1994) 38.
[9] Anti-Discrimination Act 1992 (NT) s 19(1)(c), s 4(1) definition of 'sexuality'. 'Transsexuality' is not defined.
[10] Anti-Discrimination Act 1977 (NSW) Part 4C, s 4(1) definition of 'homosexual'.
[11] Anti-Discrimination Act 1977 (NSW) Part 4C Div 4.
[12] Anti-Discrimination Act 1991 (Qld) s 7(l)(l); Equal Opportunity Act 1995 (Vic) s 6(d), s 4 definition of 'lawful sexual activity' (effective 1/1/96).
[13] Human Rights and Equal Opportunity Commission Regulations (Cth) (SR No 407 of 1989) Reg 4(a)(ix). The Industrial Relations Act 1988 (Cth) also uses the terminology of 'sexual preference': s 150A(2)(b), s 170DF(1)(f), s 170MD(5) and s 170ND(10). Note also that the Sexuality Discrimination Bill refers to 'sexuality' which it defines as 'heterosexuality, homosexuality and bisexuality ...' (clause 5).
[14] The new federal Sexuality Discrimination Bill 1995 also fails to explicitly refer to lesbians or lesbianism.
[15] See, eg, Gail Mason, '(Out)Laws: Acts of Proscription in the Sexual Order', chap 4 in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (Oxford Uni Press, 1995), esp 69-76; Wayne Morgan, 'Queer Law: Identity, Culture, Diversity, Law' (1995) 5 Australian Gay and Lesbian Law Journal 1, 17-18; Commissioner for Equal Opportunity (WA), above n 7, 3 and 37. In the early 1990s a survey was conducted in Victoria by a community based activist group, GLAD (Gay Men and Lesbians Against Discrimination). The study sought the responses of 1002 people about experiences of discrimination and harassment related to their sexual orientation. Of the 492 female respondents, 85% identified as lesbian, 6.7% as bisexual and 6% as gay. Less that 1% identified as homosexual. Of the 510 men who responded to the questionnaire, 74% identified as gay, 16% as homosexual and 6.5% as bisexual. GLAD, Not A Day Goes By: Report on the GLAD Survey into Discrimination and Violence Against Lesbians and Gay Men in Victoria (1994) 36.
[16] Prior to 1989-1990 men lodged more than 80% of the complaints under the NSW homosexuality ground. From 1990 this proportion has decreased to around 65-70%: Anti-Discrimination Board of New South Wales, Annual Report 1994-1995 31; Anti-Discrimination Board of New South Wales, Annual Report 1993-1994 30; Anti-Discrimination Board of New South Wales, Annual Report 1992-1993 26; New South Wales Anti-Discrimination Board, Discrimination - The Other Epidemic: Report of the Inquiry into HIV and AIDS Related Discrimination (1992) 116. In South Australia, men lodged over 80% of complaints under the sexuality ground in 1993-1994 and in 1992-1993 the figure was over 90%: Commissioner for Equal Opportunity (SA), Eighteenth Annual Report: 1993-1994 42; Commissioner for Equal Opportunity (SA), Seventeenth Annual Report: 1992-1993 42. The Commissioner's 1994-1995 annual report does not contain a gender breakdown of complaints lodged under the sexuality ground.
[17] GLAD found that approximately 45% of both male and female respondents recorded unfair treatment in their paid working lives; 29% of women and 26% of men recorded harassment and discriminatory treatment in education; and 41% of women and 25% of men reported inadequate service, or a refusal of service, in shops, bars, clubs, motels, restaurants, taxis, government agencies and financial institutions: GLAD, above n 14, 5.
[18] Lesbians appear, at least in New South Wales, to have used the ground of sex in preference to the homosexuality ground: Carmel Niland, 'Opening Address: The Silent Twin - Lesbian Discrimination' in Lavender (ed), What is Lesbian Discrimination? Proceedings of an October 1987 Forum Held by the Anti-Discrimination Board (1990) 2; Anti-Discrimination Board of New South Wales, Annual Report 1984-1985 120; Anti-Discrimination Board of New South Wales, Annual Report 1985-1986 53. This suggests a lack of access by lesbians to the homosexuality ground.
[19] See further Law Reform Commission, Discussion Paper 54: Equality Before the Law (1993) 49-56; Law Reform Commission, Report No 69 (Part 1): Equality Before the Law: Justice for Women (1994) 91- 157; Law Reform Commission, Report No 69 (Part 2): Equality Before the Law: Women's Equality (1994) 109-133.
[20] The conference proceedings are contained in Lavender, above n 17.
[21] Lavender, above n 17, 32. According to Carmel Niland, former President of the Anti-Discrimination Board (NSW), the main factor behind the push to include a homosexuality ground in New South Wales was as a reaction to the provisions in the Crimes Act (NSW) which criminalised same sex sexual activity between men. According to Niland, '[i]f you think that these provisions had anything to do with lesbians ... they didn't.' Lavender, above n 17, 1.
[22] New South Wales Anti-Discrimination Board, Balancing the Act: A Submission to the NSW Law Reform Commission's Review of the Anti-Discrimination Act 1977 (NSW) (1994) 97.
[23] Anti-Discrimination (Amendment) Act 1994 (NSW).
[24] See further Anna Chapman, 'The Messages of Subordination Contained in Australian Anti- Discrimination Statutes' in Gail Mason and Steve Tomsen (eds), Justice, Violence and Heterosexism (Federation Press; Australian Institute of Criminology) (forthcoming).
[25] Commissioner for Equal Opportunity (WA), above n 7, 1.
[26] Commissioner for Equal Opportunity (WA), above n 7, 37.
[27] Commissioner for Equal Opportunity (WA), above n 7, 38.
[28] In 1982 the New South Wales Anti-Discrimination Board found that '[t]he evidence is overwhelming that it is homosexuals, and not heterosexuals, who are discriminated against': New South Wales Anti-Discrimination Board, Discrimination and Homosexuality (1982) 31. See also New South Wales Anti-Discrimination Board, above n 21, 97-100.
[29] See generally, Roberta Perkins, Transgender Lifestyles and HIV/AIDS Risk: National Transgender HIV/AIDS Needs Assessment Project (Auspiced by the Australian Federation of AIDS Organisations, 1994).
[30] See, for example, Bill Muehlenberg, 'The Law for Gays Will Be a Mistake' Herald Sun (Melbourne) 6 October 1994; Shane Green, 'Gays Say they May Not Back New Laws' The Age (Melbourne) 28 February 1995; Matthew Pinkney, 'Battle Looms Over Gay Law' Herald Sun (Melbourne) 30 March 1995.
[31] See, eg, Victoria, Hansard, Legislative Assembly, 4 May 1995, 1250-1 (the Second Reading Speech); Victoria, Hansard, Legislative Assembly, 25 May 1995, 1712-33; Queensland, Parliamentary Debates, Legislative Assembly, 3 December 1991, 3576, 3598-9.
[32] Human Rights and Equal Opportunity Commission Regulations (Cth) (SR No 407 of 1989) reg 4(a)(v) and reg 3 definition of marital status (which refers to the Sex Discrimination Act 1984 (Cth) - see s 4(1) definitions of marital status and de facto spouse); Equal Opportunity Act 1995 (Vic) s 4 definitions of de facto spouse and marital status; Anti-Discrimination Act 1977 (NSW) s 4(1) definition of marital s tatus; Anti-Discrimination Act 1991 (Qld) s 4 definitions of de facto spouse and marital status; Equal Opportunity Act 1984 (SA) s 5(1) definition of marital status; Discrimination Act 1991 (ACT) s 4(1 ) definitions of de facto spouse and marital status; Anti-Discrimination Act 1992 (NT) s 4(1) definitions of marital status and de facto partner (which refers to the De Facto Relationships Act 1991 (NT) - see s 3).
[33] The exception is the homosexual vilification provisions in the New South Wales statute. These render it unlawful to, by a public act, incite hatred towards a person or group of people on the ground of homosexuality (Anti-Discrimination Act 1977 (NSW) Part 4C Div 4).
[34] (1985) EOC 92-141.
[35] Ibid 76, 395.
[36] Ibid 76, 397.
[37] Ibid 76, 398.
[38] (1995) EOC 92-716.
[39] Ibid 78, 385.
[40] Ibid 78, 386.
[41] Equal Opportunity Act 1995 (Vic) s 25; Anti-Discrimination Act 1991 (Qld) s 28; Anti-Discrimination Act 1992 (NT) s 37.
[42] Equal Opportunity Act 1995 (Vic) s 24 (in employment) and s 40 (in education); Equal Opportunity Act 1984 (SA) s 29(4) (in employment).
[43] Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1)(d) of the definition of discrimination; Equal Opportunity Act 1995 (Vic) s 75 and s 76; Anti-Discrimination Act 1977 (NSW) s 56; Anti-Discrimination Act 1991 (Qld) s 29, s 109; Equal Opportunity Act 1984 (SA) s 50; Discriminat ion Act 1991 (ACT) s 32; Anti-Discrimination Act 1992 (NT) s 51. Note that the wording and scope of these provisions varies considerably from statute to statute; many of the provisions do not apply to all the grounds listed in the relevant statute. In relation to other federal legislation, see Industrial Relations Act 1988 (Cth) s 170DF(3), s 170MD(6)(b) and s 170ND(11)(b) and clauses 10(4) and 28 of the federal Sexuality Discrimination Bill.
[44] Equal Opportunity Act 1995 (Vic) s 77.
[45] Equal Opportunity Act 1995 (Vic) s 16; Anti-Discrimination Act 1977 (NSW) s 49ZH(3)(a); Anti- Discrimination Act 1991 (Qld) s 26; Equal Opportunity Act 1984 (SA) s 34, s 71(1); Discrimination Act 1991 (ACT) s 24; Anti-Discrimination Act 1992 (NT) s 35(2). And see clause 10(3) of the federal Sexuality Discrimination Bill.
[46] Equal Opportunity Act 1995 (Vic) s 21 (note this number excludes relatives) (and see s 20 family employment); Anti-Discrimination Act 1977 (NSW) s 49ZH(3)(b).
[47] Anti-Discrimination Act 1991 (Qld) s 28; Anti-Discrimination Act 1992 (NT) s 37.
[48] Equal Opportunity Act 1995 (Vic) s 25(1).
[49] See, eg, Shane Green, 'Gay Law: Kennett Set to Try Again', The Age (Melbourne) 25 January 1995; Mark Forbes, 'Law Reforms to Tackle Prejudice', The Age, (Melbourne) 23 April 1995.
[50] Ibid.
[51] Most perpetrators of child sexual abuse are male and identify as heterosexual; most victims are female: Wayne Morgan and Kristen Walker, 'Tolerance and Homosex: A Policy of Control and Containment' (1995) 20 Melbourne University Law Review 214, citing Richard Posner, Sex and Reason (1992) 399-400.
[52] Daniel Philps, 'The Blackboard Jungle', Campaign (Sydney) April 1994, 23 and 71.
[53] Jacqui Tomlins, 'When a Teacher Comes Out', The Age (Melbourne) 30 May 1995.
[54] Equal Opportunity Act 1984 (SA) s 29(4).
[55] Equal Opportunity Act 1995 (Vic) s 24 and s 40.
[56] Equal Opportunity Act 1995 (Vic) s 40(2).
[57] See, eg, Forbes, above n 48 which clearly suggests that an appearance exemption might be introduced to appease Government MPs who oppose protection to lesbians and gay men.
[58] The Attorney-General's Second Reading Speech to the Bill asserts that the exemption is in accordance with a recommendation of the Scrutiny of Acts and Regulations Committee: Victoria, Hansard, Legislative Assembly, 4 May 1995, 1252. This is incorrect and perhaps indicates the Attorney- General's original intention in relation to this exemption. The Committee to which the Attorney-General referred recommended such an exemption in relation to the sexuality/sexual orientation ground and in addition, that it relate to 'appearance and/or behaviour': Scrutiny of Acts and Regulations Committee, Review of the Victorian Equal Opportunity Act 1984: Final Report (1993) 23.
[59] Scrutiny of Acts and Regulations Committee, above n 58, 23.
[60] Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1)(d) of the definition of discrimination; Equal Opportunity Act 1995 (Vic) s 75 and s 76; Anti-Discrimination Act 1977 (NSW) s 56; Anti-Discrimination Act 1991 (Qld) s 29, s 109; Equal Opportunity Act 1984 (SA) s 50; Discrimination Act 1991 (ACT) s 32; Anti-Discrimination Act 1992 (NT) s 51. Note that the wording and scope of these provisions varies considerably from statute to statute.