When it comes to recognising lesbian, gay, bisexual, transgender and

lntersex (LG8T|) human rlghts, much of the debate seems to concentrate

on the lssue of marrlage equallty. whlle a slgnlcant lssue, we must
recognlse that Australla's haphazard approach to recognltlon has stlned
more than just the relationships of such diverse communities.
Despite ratifying numerous international human rights treaties, sexual
and gender minorities continue have limited legal recognition and little
access to policy infrastructure to challenge ongoing discrimination.
So why do we shy away as a natlon when lt comes to commlttlng to the
broader question human rights?
Currently, each Australlan state and terrltory has antl-dlscrlmlnatlon
laws that to some extent protect sexual and gender minorities. However,
these protections remain highly disparate, characterised by inconsistent
termlnology and wlde-ranglng exemptlons.
The recent Unlted Natlons (UN) Unlversal Perlodlc Pevlew relterated
the lmportance for Australla to protect the human rlghts of lts LG8T|
cltlzens. Australla's response to thls was mlxed. whlle the Government
rejected the recommendation for marriage equality, it endorsed the
inclusion of sexual orientation and gender identity as part of the
consolldatlon of antl-dlscrlmlnatlon laws and the Natlonal Human
Plghts Actlon Plan.
While a commendable endeavour, this proposed harmonisation
process must commit to the international human rights law articulated
by the ogyakarta Prlnclples. whlle these prlnclples provlde a useful
foundation for addressing human rights in terms of sexual orientation
and "gender ldentlty, antl-dlscrlmlnatlon laws must be carefully drafted
in order to include intersex people and individuals with diverse gender
expressions.
Current equality legislation also remains limited in insistence about
thlnklng of dlscrlmlnatlon ln slngle ldentltles or characterlstlcs. As the
ogyakarta Prlnclples allude to, thls klnd of dlscrete approach tends to
obscure the intersections between individual identities.
Por example, as one partlclpant noted ln the Australlan Human Plghts
Commlsslon (AHPC) consultatlon on sexual orlentatlon and sex and/
or gender identity discrimination, how would you respond to someone
who says to you, "why don't you poofters drop dead of A|DSI Such a
vilifying statement not only relates to a particular sexual orientation, but
also connects it to an HIV status, which is characterised separately as a
disability. Public policy responses to litigating such prejudice, therefore,
must acknowledge the indivisible intersections of discrimination.
Peforms must further address how dlscretlonary exemptlons ln
legislation undermine substantive equality for LGBTI people. For
example, ln NSw, many rellglous organlsatlons play a vltal role ln the
provision of public services. However, should a faith based organisation
wlsh to do so, the Act provldes an exemptlon to allow the excluslon
of a LGBTI person from providing foster care, or the expulsion of a
student at a rellglous school on the sole basls that thelr 'homosexuallty'
or 'transgender status' was percelved to compromlse thelr rellglous
sensibilities.
While freedom of religion must be balanced against other human
rights obligations, an important distinction must be drawn between
what is an inherently religious function, and what is eectively public
administration.
|n the veln of the UK Human Plghts Act, exemptlons should not
exist where an organisation is in receipt of public funds to provide
outsourced government services. The rationale underpinning equal
opportunity legislation is to redress a history of social inequity. It is
counterintuitive then to permit permanent and automatic exemptions
to discriminate against those it is designed to protect.
A stronger statutory framework alone, however, wlll not ensure soclal
justice for sex, sexuality and gender diverse people. Policy initiatives
must elaborate on legal reform by providing education campaigns to
challenge prejudice, adequate funding for a national peak body, and
clear public accountability for LGBTI rights protection.
Lynne Hllller et al. observes ln wrltlng Themselves |n 3 (20l0)
that approxlmately 60 percent of same-sex attracted and gender
questlonlng young people experlence verbal or physlcal abuse, 80
percent of whlch occurs ln school-based settlngs. |n addltlon, the
report indicates homophobic victimisation has increased over the past
decade, slgnallng the need for comprehenslve, LG8T|-speclc, dlverslty
education to challenge prejudice in schools.
Thls ls not unlque to young people. Llderly LG8T| couples have had to
live most, if not all, of their lives with the threat of criminal sanctions, or,
at the very least, social stigmas regarding their intimate relationships.
Now these couples are coerced lnto remalnlng sllent over thelr sexuallty.
Prejudice, or even simple ignorance in school or in aged care services,
results in the denial of appropriate care because legal and policy reform
remains somewhat blind to the vulnerable position of many elderly
sexual and gender minorities.
While the Federal Government has made broad rhetorical claims
to improve our human rights culture, these political gestures are of
llttle slgnlcance unless comprehenslve, lncluslve, and approprlately
resourced rlghts protectlon ls avallable for all LG8T| people ln Australla.
Senthorun Raj is the Policy and Development
Coordinator at the Gay & Lesbian Rights Lobby and a
regular contributor to the Pride in Diversity newsletter
4FOT$PSOFSConsolidating human rights
PRIDE IN DIVERSITY NEWSLETTER JANUARY 2012 l9