Lesbian, gay, bisexual, transgender and intersex people one step closer to discrimination protections

The Sex Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (SDA Bill) passed through the House of Representatives on 30 May 2013 after the Commonwealth Government announced welcome amendments to eliminate discrimination in the provision of Government funded aged care. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 will, if passed, extend protection under the Sex Discrimination Act 1984 (Cth) to “gender identity”, “sexual orientation”, “intersex status” and “relationship status”. This will mean that lesbian, gay, transgender and intersex people will be protected from discrimination for the first time at a national level and able to make claims against the federal government and agencies such as Centrelink and Medicare.

The HRLC prepared a comprehensive submission on the SDA Bill in April 2013. In particular, the HRLC submission welcomed the definitions of the new attributes, including the explicit recognition and protection of intersex people. If passed, the Bill will represent leading international best practice for the protection of sex and gender diverse people. However, the HRLC made a number of recommendations that focused on removing unjustified exemptions in the Bill, including narrowing the broad exemptions available to religious organisations and schools.

The SDA Bill was introduced after the Government shelved its Human Rights and Anti-Discrimination Bill 2012 which would have consolidated federal anti-discrimination legislation – a decision met with extreme disappointment from the HRLC and other rights organisations. The HRAD Bill contained a limitation on discrimination in aged care services, even when delivered by a faith based organisation, which was not reflected in the SDA Bill when it was first tabled in parliament. At the time, the Attorney-General in his comments to the media said it was still government policy to include the limitation, but did not explain why it was not included in the SDA Bill.

Thankfully, the amendments announced last week will amend the Bill to introduce a limitation on discrimination in Commonwealth funded aged care services, as well as updating references to “sexual preference” in the Fair Work Act 2009 (Cth) and other federal laws with the new terminology “sexual orientation”. Unfortunately, the Government has not proposed also extending protections under the Fair Work Act to “relationship status”, “gender identity” and “intersex status” to further harmonise anti-discrimination protections in federal law. The HRLC and others will continue to lobby for these and other improvements to the Bill.

The Bill is expected to pass through the Senate with the support of the Greens when it is debated later this month. The Bill would then need to pass the House of Representatives in its amended form, with the support of four of the five independents. While the Shadow Attorney-General Senator Brandis has confirmed the Coalition’s support for the SDA Bill it remains to be seen whether the Coalition will support the Bill in its amended form and/or introduce its own amendments. The Coalition is due to make its decision in a party room meeting later in June.

The Bill will be debated in the Senate in the next sitting week of parliament, commencing 17 June 2013, the same time the Senate Legal and Constitutional Affairs committee is due to report on its inquiry into the Bill.

Anna Brown is the HRLC’s Director of Advocacy and Strategic Litigation