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Background

Scope of the Anti Discrimination Act –Response to the Recommendations

Extension of Employment/Work Environment

Marital Status

Exceptions and Exemptions

Superannuation

Other Recommendations

DRAFT ANTI-DISCRIMINATION BILL 1999

Conclusion

MAJOR REPORT - April 2000

The NSW Anti-Discrimination Act

PART B - The Scope of the Anti-Discrimination Act –
Response to the Recommendations

2. Redefining the Ground of Homosexuality

2.1. No Substantive Change to Warrant Redefinition

We disagree with the recommendation of the Law Reform Commission Report to change the protected attribute of “homosexuality” to “sexuality” [Recommendation 36] and thereby cover heterosexuals.

In our submission redefining the ground fails to recognise the discrimination that gays and lesbians continue to face. The Report and the proposal fails to analyse in any detail the fundamental reason why thespecific ground was enshrined in the ADA or how it relates to the purpose of anti-discrimination legislation.

In discussing the concept of discrimination, the Report notes that although it is a fundamental principle of democratic society that citizens are legally and politically equal “discrimination, including exclusion and subordination, has been the historical response to encounters with the "other"” [par.3.1]. This has certainly
been the experience of lesbians and gay men who are identified as “other” by their homosexuality and who thus fail to conform to the dominant standard of heterosexuality.

The ADA is a legislative attempt to respond to the discrimination that results from encounters with the nondominant “other”. It aims to ensure equality of opportunity and create an environment in which substantive equality between groups is possible. This is done by identifying grounds on which impermissible discrimination occurs and prohibiting discrimination on the basis of these grounds in order to protect individuals who may suffer discrimination due to their membership (or perceived membership) of a particular group. It also provides an educational tool for demonstrating that discrimination on the basis of membership of that group is unacceptable.

The ADA does not operate as a Bill of Rights providing undifferentiated rights but rather responds to the specific problem of discrimination. By identifying specific grounds of prohibited discrimination it recognises the bases on which discrimination occurs. In other words the specific discrimination is identified and an attempt made to remedy it. The Commission is incorrect in its assertion that it would not be practical or appropriate to identify disadvantaged groups and link the protection of the ADA to the bases of disadvantage [pars.3.9-3.12]. On the contrary, this is exactly the approach of the ADA. Only those grounds which are identified in the ADA can form the basis for a complaint of discrimination and the identification of these grounds forms the basis for education.

The Commission recognises this reality elsewhere in the Report and, significantly, does not endorse the inclusion of new grounds in the absence of clear evidence that there is a significant social problem reflected in the proposed ground (for example, par.5.230).

All the evidence suggests that discrimination on the ground of homosexuality has not disappeared. Nor have the dominant group, heterosexuals, experienced an increase in discrimination on the basis of their sexual orientation.

We invite you to briefly consider the overwhelming evidence that lesbians and gay men continue to experience discrimination in every aspect of their lives. The following are examples of four areas in which we suffer from discrimination. There are many others.

(a) Legal Equality

Gay men and lesbians do not enjoy even formal legal equality in Australia. We are perhaps the last group that is not recognised as equal citizens in even this formal way. Our relationships with our partners and children are not recognised in many situations; we are not treated equally by our superannuation funds, and gay men in New South Wales still face an unequal age of consent.

(b) Violence

The continuing high incidence of violence against gays and lesbians demonstrates the existence of embedded discrimination which is real and warrants a special ground for protection. Research done by the AVP and the NSW Police Service has shown a high incidence of violence and verbal harassment against gay men and lesbians. Gay men are four times more likely to be assaulted than other men; lesbians are six times as likely as other women. Violence is frequently severe and includes murders that are motivated by homophobia.

Fear of discrimination or concerns about confidentiality can also make it less likely that lesbians and gay men will report violence to the Police. There is no evidence - and no-one has even suggested - that heterosexuals are victims of hate crimes on the basis of their sexuality. The effectiveness of the Police Service in dealing with this problem would be further undermined if it were under pressure to pretend that violence on the basis of heterosexuality occurs.

(c) Workplace Discrimination

A recent study of the workplace experiences of 900 lesbians, gay men, and transgender people, in a joint project of the Gay and Lesbian Rights Lobby and the Australian Centre for Lesbian and Gay Research shows alarming rates of discrimination and prejudice. The research found that harassment and/or prejudicial treatment on the basis of homosexuality or gender identity was widespread with 59% of the participants experiencing this in their current or previous workplace.

Some of this discrimination was of the most serious type including reports of sexual and physical assault. The homophobic behaviour reported by the participants included:

• sexual and physical assault,
• verbal harassment and abuse,
• destruction of property,
• unfair rosters,
• unreasonable work expectations,
• restrictions to career,
• denial of workplace entitlements that were available to heterosexual colleagues such as partner travel, superannuation, and compassionate leave; and
• unfair dismissal.

It is significant that employment is the largest area of activity of the ADB and the largest number of complaints relate to employment. No evidence is cited in the Report that heterosexuals suffer discrimination in employment. Anecdotal as well as statistical evidence is all to the contrary.

(d) Gay and Lesbian Youth

The most striking and tragic fact about gay and lesbian youth is their high rate of suicide and attempted suicide. Research, mostly done in the US, indicates 25% to 40% of young lesbians and gays have attempted suicide, with up to 85% feeling suicidal. Despite the high profile of the issue of youth suicide in Australia, there has been little official interest in young gays and lesbians.

However, a 1996 Western Australian study of young gay men confirmed the extent of the problem - finding over half had attempted suicide.

Lesbian and gay youth are also known to have high rates of homelessness – generally related to lack of family acceptance. This is compounded by the fact that they are often subject to discrimination within services and excluded from accommodation. Harassment and violence at school is another all too common problem.

There is no parallel experience of discrimination for heterosexuals in any of these areas. We suggest that lesbian and gay youth who experience discrimination at school and at home would be particularly offended by the suggestion that the stigma which they encounter on a day to day basis can be sublimated in favour of adopting a “universal principle” under the Act [par.5.98] given the lack of identifiable evidence that heterosexuals do in fact suffer discrimination from homosexuals [par.5.106].

2.2. Discrimination on the Basis of Heterosexuality

The statement in the Report that people are discriminated against on the ground of their heterosexuality [par.5.99] is quite unconvincing and is not backed up by any empirical evidence. The Report states that a number of submissions received by the Commission adverted to the problem of discrimination experienced by heterosexual people and expressed the view that "heterosexuality" should be included as a separate ground of discrimination under the ADA. An examination of the relevant footnotes reveals only three such submissions were received by the Commission, from the Call to Australia Party and two individuals. No empirical evidence of the existence of such discrimination was quoted at all. It is noted that the Call to Australia Party also argued that homosexuality should not be included as a prohibited ground for discrimination, leaving only heterosexuality, and converting the ADA into a tool to enforce the dominant standard and reduce difference.

2.3. Need to Recognise Specific Grounds

Even without the removal of homosexuality as a ground, the extension of the definition camouflages the original intent which was to protect gays and lesbians and not to reflect the broader values of the dominant group, notably heterosexuals. In our submission continuing high rates of discrimination and lack of a comparable heterosexual experience militates against a shift in focus away from discrimination on the basis of homosexuality and is inconsistent with the purpose of the legislation. It does not readily identify that the irrelevant characteristic not to be taken into account (and which frequently is taken into account) is “homosexuality”. The “universal standards” approach is not invariably embraced. There is no such approach to the grounds of disability, pregnancy, transgender status or, arguably, marital status. Nor is it suggested for carer responsibilities and family responsibilities. This is specifically acknowledged in the Report in relation to carer and family responsibilities and explained by reference to the purpose of introducing this ground which is to address the disadvantage caused to some by the conflict between private and public life [par.5.208]. In this case it is suggested that the failure to include lack of carer and family responsibilities may cause some problems and indeed result in disadvantage to single employees and those without children due to the fact that his ground requires employers to make “reasonable accommodation” rather than merely refrain from positive acts of discrimination. Examples given are benefits such as allowances provided for those with families and people with family responsibilities being given preference in the choice of shifts [pars.5.209-5.210]. The approach taken to this ground is in stark contrast to that taken to homosexuality. In the case of homosexuality no similar problems are created for heterosexuals and no additional burden is placed on heterosexuals beyond the need to refrain from discriminating on the basis of homosexuality.

The failing of the “universal standards” approach, can be demonstrated by applying it to the ground of disability. The Act does not operate to protect the attribute of ability. People are not discriminated against on the ground of ability but suffer discrimination on the ground of disability. Therefore the Act provides protection on the basis of disability. This implicitly recognises that to do so does not create special rights but an environment in which people with disabilities can enjoy equal rights. Similarly, people suffer discrimination not on the ground of their sexuality but on the ground of their homosexuality.

2.4. Need for a Symbolic Message

To adopt the Report’s approach, that the Act itself operates as an educational tool in combating discrimination, we believe that there is a case for sending a message that homosexuality is a stigmatised attribute but that it should not be a stigmatised attribute. This case is as strong as it was in 1982. This has been recognised by the legislature’s enactment of specific vilification laws prohibiting the incitement of hatred on this basis.

You should not underestimate the symbolic importance to the gay and lesbian community of the Act in its present terms. Despite the lack of publicity for this change to date, several gay men and lesbians have expressed concern that this change signals a watering down of protection and will make the Act less effective. The concern has been especially strong from lawyers and others working in the area of discrimination.

We have grave concerns that a change to the current definition so that homosexuality will not be a separate and distinct ground will clearly suggest a level playing field to those who do not wish to recognise or are unfamiliar with homophobic discrimination. It also sends a signal that gay men and lesbians are not deserving of protection. The proposed change will contribute to the stigma and loss of self esteem which the Act seeks to address.

We note that the recommendation seeks to define sexuality as heterosexuality, homosexuality, lesbianism and bisexuality. We note that all those who are discriminated against on the basis of homosexuality or perceived homosexuality are currently protected. This includes gay men, lesbians, bisexuals and, indeed, heterosexuals. There may be some advantage in making clear that “homosexuality” includes lesbianism [Report par.5.107]. However, there is a risk that this will be seen to suggest that the existing attribute of “homosexuality” did not include being lesbian, which is clearly not the case.