Anti-discrimination Exposure draft – the issues

I have realised that I have been remiss in my blogging, having completely missed out the Exposure Draft Human Rights and Anti-discrimination bill put forward by ex-Attorney General Nicola Roxson.

On the whole, it’s a good idea, and it’s basically an effort to harmonise state discrimination legislation to a high standard.  It will be the first federal anti-discrimination legislation in Australia.

There are, however, some problems with the draft, which need to be rectified before it should be passed.

Early on in the bill, in the definitions section in fact, we note that there is no entry for “intersex”.  This is a group of people who can and do experience discrimination based upon a vast array of genetic conditions.  The closest they get to being covered under this bill is under gender identity.  From the draft legislation (Chap 1, Part 1-2, Division 2, Section 6 – p15)

gender identity means:
(a) the identification, on a genuine basis, by a person of one sex
as a member of the other sex (whether or not the person is
recognised as such):
(i) by assuming characteristics of the other sex, whether by
means of medical intervention, style of dressing or
otherwise; or
(ii) by living, or seeking to live, as a member of the other
sex; or
(b) the identification, on a genuine basis, by a person of
indeterminate sex as a member of a particular sex (whether or
not the person is recognised as such):
(i) by assuming characteristics of that sex, whether by
means of medical intervention, style of dressing or
otherwise; or
(ii) by living, or seeking to live, as a member of that sex.

Looks good right?  On the surface, the right words are there – there’s a second clause which exists for people of indeterminate sex.  But read it a bit harder, and you’ll see where the problem is – “the identification, on a genuine basis, … as a member of a particular sex”.  Gender identity does not permit intersex people (or any people, for that matter) to identify as neither, or both, or indeterminate, or anything except either male or female and still receive the benefits of the anti-discrimination legislation.

“We’ll help you, but you have to pick one.  Until you pick a side, you’re fair game.”  No room for a Switzerland in the gender divide, it seems.

So this is one of the major failings of the draft.  Another is the inclusion of the wording “on a genuine basis” – There are going to be some interesting judgment calls over the next while on what exactly “a genuine basis” might be.  How will someone prove that they genuinely identify as a member of the opposite gender – and how do they challenge the assertion that they don’t genuinely identify?

And then there’s the other thing I have a major problem with: (Section 33, pp48-49)

Exceptions for religious bodies and educational institutions
Protected attributes to which these exceptions apply

(1) The exceptions in this section apply in relation to the following
protected attributes:
(a) gender identity;
(b) marital or relationship status;
(c) potential pregnancy;
(d) pregnancy;
(e) religion;
(f) sexual orientation.
Exception for conduct of body established for religious purposes
(2) Subject to subsection (3), it is not unlawful for a person (the first
person) to discriminate against another person if:
(a) the first person is a body established for religious purposes,
or an officer, employee or agent of such a body; and
(b) the discrimination consists of conduct, engaged in in good
faith, that:
(i) conforms to the doctrines, tenets or beliefs of that
religion; or
(ii) is necessary to avoid injury to the religious sensitivities
of adherents of that religion; and
(c) the discrimination is on the ground of a protected attribute to
which this exception applies, or a combination of 2 or more
protected attributes to which this exception applies.
(3) The exception in subsection (2) does not apply if:
(a) the discrimination is connected with the provision, by the
first person, of Commonwealth-funded aged care; and
(b) the discrimination is not connected with the employment of
persons to provide that aged care.
Exception for conduct of educational institution conducted in
accordance with tenets etc. of a religion
(4) It is not unlawful for a person (the first person) to discriminate
against another person if:
(a) the first person is an educational institution that is conducted
in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion, or an officer, employee or agent of
such an institution; and
(b) the discrimination is connected with employment by the
educational institution, or with the provision of education or
training by the institution; and
(c) the discrimination consists of conduct, engaged in in good
faith, that:
(i) conforms to the doctrines, tenets or beliefs of that
religion; or
(ii) is necessary to avoid injury to the religious sensitivities
of adherents of that religion; and
(d) the discrimination is on the ground of a protected attribute to
which this exception applies, or a combination of 2 or more
protected attributes to which this exception applies.

In short: Schools, Employment agencies, and in fact any religiously affiliated body can choose to withhold services from people on the basis of:    gender identity; marital or relationship status; potential pregnancy; pregnancy; religion; sexual orientation.

So if your church believes only those women who cannot get pregnant should be teachers, in their school, they can discriminate on those grounds.  They get to discriminate in their disability services, choosing not to provide services to transgender or gay clients – provided they can make the claim that it’s a belief of their religion.  If living together unmarried is a sin, they can choose not to hire you – or for that matter, refuse to accept your children into the school.  These organisations can choose not to provide services that the government pays them to provide on the basis of attributes otherwise protected by federal law. (Unless they’re providing aged care – aged care institutions are not allowed to discriminate against clients)

And it doesn’t stop there – oh no. They can also discriminate when it comes to hiring staff – even if they’re an aged care provider. We are seeing people fired for being pregnant out of wedlock, for being found out as being gay, for “living in sin”.  Whether they’re a cleaner, a teacher, a nurse, or a receptionist, people the government have identified as being at risk of discrimination are not being protected against Religious Organisations who are some of Australia’s biggest employers.

Some people have suggested that Section 32 is a problem as well.  I don’t. It basically permits religions to discriminate how the like when it comes to appointing their ministers.  I think that it *is* reasonable to discriminate for these positions as having someone that does *not* fit your belief-mold is a bit hypocritical when they then espouse the conflicting tenet.  They get to pick and choose on 11 of the 17 protected attributes.

I think concern about s32 is misplaced.  I wouldn’t want to dictate who could be a minister of religion – that *is* a religious decision.

Other people have also raised concerns about the inclusion of offence as part of the discrimination act – I can see their point, but I don’t think it’s as important as the two points I’m writing about tonight.

So there’s a report out on the 18th, which I’ll be reading and forming an opinion on for you shortly afterward!

In short, Section 6’s lack of Intersex and Section 33’s broad application to clients and employees of religious organisations alike I find disturbing.  I had hoped that the Abbott and the Opposition might make efforts to force amendments to the bill in these areas, but they’ve indicated they’re just going to vote no instead.  I guess they couldn’t afford to look like an effective opposition.

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One thought on “Anti-discrimination Exposure draft – the issues

  1. Personally, I don’t think there should have to be any gender based definition because it shouldn’t matter whether someone is a particular gender, identifies as a particular gender, or doesn’t identify as any particular gender etc. The whole proving something that is so personal and individual “on a genuine basis” is ludicrous. Everyone should be free to be who they are, it should be that simple. I have no problems with religious organisations picking and chosing who they want to be a part of their organisation or not but I do object to these organisatons receiving government funding and tax exemptions.

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