Sexual Orientation and the Law: 10 Years of the South Australian Equal Opportunity Act 1984
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When I sat down to reflect on what I wanted to say to you today about the operation of the sexuality provisions of the South Australian Equal Opportunity Act, one word came into my mind immediately and that was: controversy. Controversy surrounde d its introduction into State Parliament in 1984, eventual passing, and now after 10 years, the controversy continues.
Senator Sid Spindler also talked about the controversy when he introduced into Federal Parliament his private members bill: the Sexuality Discrimination Bill 1995. He cited "hysterical misrepresentations" and the difficulties he had with: "a seri es of attacks and a sleazy campaign and vicious dirt". Clearly the controversy remains.
Why?
After all sexual orientation is basic. It is one of the ways we define who we are. Given that, it is clear those who face persecution and discrimination because of their actual or presumed sexuality are no less being denied their human rights than th ose facing racism, sexism or any of the other internationally recognised forms of persecution. To argue otherwise is a nonsense.
And the rights involved are equally basic: the rights of personhood, liberty, equality, conscience, expression, and association - rights that ought to apply regardless of a person's race, gender or sexuality.
I wonder also why the proposals for laws to protect those rights and prevent discrimination on the grounds of sexuality are so controversial when one of the core ideals in Australia is a fair go for all. Surely a fair go for all means we accept an d value our differences, to gain a socially cohesive society.
Whilst we hold this ideal strongly it is constantly being challenged by people and groups who feed into the fears and prejudices of the community to impose their world view as the norm, the fixed, the known. Perhaps the answer lies in the obvious tension which exists between our ideal of a fair go for everyone and our fears and prejudices. After all, introducing laws is an expression of community beliefs about what behaviour is acceptable in our society.
Since 1975 Australia has had in place equal opportunity and human rights laws at both the State and Federal level. Many of those laws have something to say about the protection of people of different sexual preferences and transgender identity. S ome of those laws are silent, some others have loopholes and gaps. Even the best of them are well short of perfect. The South Australian Equal Opportunity Act is no exception.
This morning I will present to you a case study of the South Australian Equal Opportunity Act in operation. I will do this in the following way:
First, I will outline the development of the law, describe the passage of the Bill through the South Australian Parliament and outline the definitions and exemptions of the Act.
Second, I will broadly analyse the complaints of discrimination lodged under the sexuality provisions of the Equal Opportunity Act over the last 10 years.
Third, I will detail two case studies from people who are transexual, and the landmark case of David Paul Jobling, who is a homosexual.
I will conclude by considering whether or not in the 10 years the Equal Opportunity Act has achieved its aim of protecting people against discrimination on the ground of their sexuality, providing a remedy for any person who rights are violated and fostering unprejudiced attitudes in the South Australian community, or indeed, come close to it.
Development of the law
If we cast our minds back to 1983 in South Australia the Labor Government had been elected after 4 years in Opposition. It came to power with an ambitious program of reform, which included a review of the State anti-discrimination laws. A Working Party was formed and as Commissioner for Equal Opportunity I was appointed as a member.
Representations were made to me seeking that I support the inclusion of a broad definition of sexuality in the new Act. The group making the representations included members of the gay and lesbian communities and the United Trades and Labour Counc il. They sought a broad definition of sexuality, that is, sexuality would include heterosexuality, homosexuality, bisexuality and transexuality,[1] despite the fact that no other state had such a broad definition. Indeed, at the time, 1983, only New South Wales offered any protection against discrimination relating to sexuality and that was limited to the ground of homosexuality.
The group argued that the inclusiveness of such a broad definition enabled a recognition in law not only of homosexuality but of bisexuality and transexuality. We debated whether or not heterosexuality should be included. The rationale was uncomp licated: the definition aimed to be inclusive and cover the range. Heterosexual people therefore had the same rights of protection as homosexual people even though homosexual people clearly suffered significantly more discrimination. The comparison was made with the sex discrimination provisions that is, both men and women were protected against discrimination despite the fact that women experienced much greater levels of discrimination than men.
The group argued that the definition in law should relate to sexuality and not to sexual activity. They were strongly opposed to any wording such as "lawful sexual activity". They recognised that whilst such a definition enshrined the rights of g ay and lesbian people, it implicitly denied them acknowledgment of equality of sexual preference. It also failed to include transexual people.
The group proposed a broad definition for a transexual and that too was uncomplicated: transexual means a person of the one sex who assumes characteristics of the other sex and correspondingly transexuality means the condition of being transexual.
It is interesting to compare the definitions recommended in a recent discussion paper (1996) of the Federal Sex Discrimination Commissioner, titled: "Transgenders and Discrimination: Options for Legislative Protection" and I quote the recommendatio ns:
"I recommend that the term transgender is preferable to the term transsexual for the purposes of anti-discrimination legislation. It is further recommend (sic) that various groups within the group defined as transgender be expressly referred to in the legislation.
I recommend that transgenders be defined as all persons whose biological birth sex is at variance with their preferred gender identity; and,
- who adopt or seek to adopt the social, behavioural, psychological and/or physiological characteristics of that preferred gender identity; and,
- who live or seek to live in conformity with that preferred gender identity.
Transgender persons include persons who are or identify themselves, as transsexual, pre-operative gender dysphoric, non-operative gender dysphoric and reassigned persons."
The recommendations go on to define a transexual person and include symptoms relating to gender dysphoria and those people who attempt to assume the characteristics of a sex different to their birth sex by means of chemical and surgical procedures. As well, the recommendations include definitions of gender dysphoric persons, pre-operative gender dysphoric persons, non-operative gender dysphoric persons and reassigned persons.
Whilst I recognise the abundance of caution in these recommendations for legislative reform I wonder whether such complex definitions will ensure enhanced protection against discrimination for transexual people. Perhaps we could discuss these issu es during questions?
To return to the development of the sexuality provisions in the South Australian Equal Opportunity Act, the group was also concerned that presumed sexuality was included to ensure protection for those people who were not of the sexuality assumed. Many examples were cited. These mostly related to men, and some to women, where it was assumed because of the person's mannerisms or voice they were homosexual or lesbian, but in reality they were heterosexual.
I supported the proposals and referred them to the Working Party so they were included in the recommendations to Government. The Government accepted those recommendations, and included them in the Equal Opportunity Bill.
The Equal Opportunity Bill was introduced into Parliament in 1984 and met with immediate opposition. I was not surprised. Whilst those of us who were working to protect people against discrimination supported the Bill as the provisions seemed to us to be a matter of protecting people's human rights, many in the South Australian community labelled such reforms as radical, an assault on family values, a recognition of people who have some form of weird disease and so on. Consequently the Bill wa s amended 101 times. Most of those amendments related to the sexuality provisions. Finally the Bill went to a Conference of Managers - the process used in the South Australian Parliament used to resolve controversial Bills.
The end result: all the sexuality provisions remained intact, that is, they were not changed from the original proposals. The Equal Opportunity Act 1984, which came into force in 1986, therefore protects people against direct and indirect discrim ination on the grounds of sexuality in all areas except clubs and associations.[2] It also contains certain other exemptions.
Exemptions
As I have said one exemption related to clubs and associations. All clubs and associations can lawfully discriminate against people on the grounds of their sexuality, which means people can be excluded from membership or denied a benefit, if they are a member simply because they are heterosexual, homosexual, bisexual or transexual. At the time the exemption applied also to employee (unions) and employer associations, but the Act has since been amended and potential members and existing members o f employer or employee associations are now protected against discrimination on the grounds of their sexuality.
Interestingly, the first complaint relating to the ground of sexuality I received under the new Equal Opportunity Act was from a heterosexual couple, Jenny and Paul, who claimed they were denied entry to a gay club because they were heterosexual. Given the exemption the complaint was clearly outside my jurisdiction and no action could be taken.
Another exemption concerns a person's appearance or dress in employment. An employer can dismiss, refuse to hire or require the person to change their dress or appearance if the person expresses their sexuality through their appearance; and the em ployer reasonably believes that such dress or appearance is inappropriate to the particular workplace. This exemption was actually included to give employers options to manage people who are transvestites.
In 1990 I was asked to consider whether the Equal Opportunity Act covers transvestites. The exemption itself raises some vexed legal questions. If the intent of Parliament in formulating the exemption was to give employers options to manage peopl e who dress or appear in a particular way which reflects their sexuality or is a characteristic of it, does that mean transvestite people can be determined in law to be people who express their sexuality through their dress or appearance, and as a conseq uence are covered by the definition of sexuality? My view is that it would be difficult to sustain such a construction of the law and therefore transvestites are probably not covered by the definition of sexuality.
Another exemption relates to partnerships. It is not unlawful for a firm or a person promoting the formation of a firm to fail to offer a partnership to a person because of their sexuality if the firm or partnership consists of less than six membe rs. Whereas it is unlawful not to offer a partnership because the person is a woman or a man, or of a particular race in firm of one or more members. So a person can be lawfully denied a partnership in a firm of less than six partners because of their s exuality.
The Equal Opportunity Act also gives broad exemptions to religious bodies, however, with the ground of sexuality it extends the exemption to educational institutions where the institution is administered in accordance with the precepts of a particu lar religion. So, for example, any prospective employee or employee of an educational institution affiliated with the Catholic, Anglican, Uniting Churches or any other church or religious group can be discriminated against on the basis of their sexualit y and such discrimination will not be unlawful.
It seems to me this exemption has enabled the established churches to ignore the existence of homosexual people within their congregations and parishes. There is one exception of which I am aware - you may have other examples. A recent decision o f the Uniting Church in South Australia, after much agonising, decided not to block the appointment of homosexuals to leadership positions in the church.
In a recent review of the Equal Opportunity Act conducted for the South Attorney-General by Mr Brian Martin QC in 1994, these exemptions were not examined because there were no submissions made to Mr Martin. As a consequence, at this time, there are no proposals for amendments to the Equal Opportunity Act.
So to return to 1984 and the passing of the Equal Opportunity Act by the South Australian Parliament. The legacy of the deliberations of our Parliamentarians has been a very broad definition of the ground of sexuality, indeed at the time, the bro adest in Australia, and exemptions which over the ten years have proven to be reasonable.
You ask how can the exemptions be reasonable? My response: exemptions do not prevent fair and non-discriminatory treatment, as the South Australian Uniting Church demonstrated.
The inclusion of those exemptions reflected the controversy surrounding the legislation at the time, and continues in my view to accord with the beliefs of most South Australians.
Complaints of discrimination
The total number of complaints lodged in the ten years of operation of the Equal Opportunity Act is approximately 12,000, of those 225 are complaints lodged on the ground of sexuality. The overhead shows the actual numbers of complaints received each year and converts those statistics into the percentage of total complaints lodged.[3] In total, therefore, the numbers of complaints received have been comparatively small.
It is, however, important to underline that these complaint statistics represent formal complaints. Formal complaints are written complaints which are assessed (in the South Australian context, by solicitors) and if the allegations prima facie mee t the three tests required by the Equal Opportunity Act, that is the allegations raise a ground, for example, sexuality, an area, for example, employment, and unfavourable treatment in that employment, the complaints are then initiated, investigated and depending on the results of the investigations, conciliated, declined or referred to the Equal Opportunity Tribunal for judicial determination. These are complaints which people usually act upon after much thought, and with a strong conviction that they have been unfairly treated.
It is my view that the number of formal complaints of discrimination lodged with the Equal Opportunity Commission is always the "tip of the iceberg", and only provide some indication of the form the discrimination is taking in the community. The r eal incidence of such discrimination is likely to be much higher.
Associated with lodging complaints on the ground of sexuality is the issue of invisibility of many gay and lesbian people. Many gay and lesbian people choose invisibility in exchange for safety and acceptance within the community. Even if they a re discriminated against they will not declare their sexuality by lodging complaints under equal opportunity law.
The complaints statistics also need to be considered within the context of the projections of the number of homosexual, bisexual and transexual people in the community. Clearly such projections are only guesstimates but studies suggest the propo rtion is around 10 -12% of the 1.5 million people, approximately, in South Australia.
Taking into account all those factors the complaints statistics clearly tell us that a number of people in the South Australian community are being discriminated against on the ground of their sexuality, and that probably many more experience discr imination but do not complain about their unfair treatment.
Who then are being discriminated against?
I will give you a four year picture which shows the trends:
1991/92, 14 complaints were received from homosexual people, one from a heterosexual person and one from a transexual person.
1992/93, 22 complaints were received from homosexual people, two from heterosexual people and 13 from transexual people.
1993/94, 15 complaints were received from homosexual people, three from heterosexual people and four from transsexual people.
1994/95, 27 complaints were received from homosexual people, one from a heterosexual person and two from transexual people.
So from the picture we see the bulk of complaints are received from homosexual people, with a continuing smaller number from transexual people, even less from heterosexual people and none from bisexual people, and these trends have been consistent over those four years. I would expect the trend to continue in the 1995/96 statistics.
Case Studies
What then happens when people are discriminated on the basis of their sexuality?
To illustrate, I will detail two case studies from people who are transexual, and explain the landmark case of David Paul Jobling, who is a homosexual. The two case studies are a construction of several of the confidential complaints made to the Equal Opportunity Commission. Any resemblance to people or companies is co-incidental. Whereas the case of David Jobling was determined by the South Australian Equal Opportunity Tribunal, in a public hearing, and appealed to the Supreme Court. Let us first l ook at the case studies of transexual discrimination.
Robert was an engineer involved in the maintenance of aircraft for an airline company. For many years prior to and during his employment, Robert struggled with issues of identity: whether he was a man or a woman.
Robert's workplace was male dominated. There were no women working in the area. Macho jokes were evident in abundance, there were "girlie" posters on the walls and many of the parts used for the repairs of the aircraft were given names which were sexy or had sexual connotations. These names were used when the guys talked about their work.
After about seven years with the company Robert decided he wanted to become a woman and proceeded to undergo counselling and treatment. Following some time of undergoing the treatment he announced to management and to his work mates, that he was i n the process of becoming a woman, sought their support and asked to be called Rebecca.
Management was sympathetic. The change was very difficult for Rebecca both emotionally and physically, and management provided personal support. Management however, did not anticipate or take any preventative action to deal with potential conflic ts in the workplace. In fact, they did not know what to do.
The response from the guys in the workplace was entirely different. Rebecca suffered incredible levels of verbal abuse, the guys played games which constantly put her down or intimidated her, they hid her tools and the parts she need to do her wor k and all but one of her workmates called her "it".
Rebecca needed the job to pay for her treatment. There were few options for transfer in the company, given her skills. Added to which, she had worked in the job for many years, she was good at it and she wanted to stay. Indeed, her high levels o f competence were recognised both by management and the guys in the workplace. She felt strongly she should not be driven out of a job because she was a transexual.
On many occasions she went back to management but they seemed unable to address the problems in her workplace, so after more than six months of harassment and threatened physical abuse she lodged a complaint with the Equal Opportunity Commission. By this time, management was faced with a major workplace issue which they had to resolve if they were to achieve reasonable levels of productivity in the area.
Rebecca's case highlights the very complex issues involved in almost all complaints of transexuality discrimination. The first issue is identity. Not only did Rebecca agonise over whether or not she is a man or a woman, so did her family, managem ent and her workmates. I remember saying to her in one of our long discussions: "We all are clear about our identity" and she replied: "I know you are, but I still wonder if I really am a woman, I want to be, I just don't know, I question all the time" . I recognised then how much those of us who are clear about our identity take it fir granted, and how hard it must be if that central part of oneself is in doubt.
The second issue is the lack of knowledge of management and their seeming inability to seek expert help quickly to enable them to address the problems. These issues are always difficult involving a range of emotions but had management sought advic e as soon as they were aware of Rebecca's change and developed strategies accordingly the potential effects of Rebecca's change in the workplace could have been significantly lessened.
The third is rejection. Rebecca's workmates rejected her change outright. Seeing her at work simply reinforced the fact that she had changed. The way the guys dealt with her changes varied with the individual, but generally they were aggressively angry at what they perceived to be a threat to their masculinity. There was an exception, one of the guys recognised Rebecca's difficulties. He was also very masculine and eventually was central to the resolution of the problems.
The fourth issue is the amount of time involved to resolve the problems when matters are not confronted early and managed. It took an incredible number of hours of management time, the implementation of a range of strategies to control the behavio ur of Rebecca's workmates and extensive training before Rebecca could safely work within that workplace. In the end the guys did not like it, but they learned to tolerate her change and work reasonably harmoniously with her.
The same issues arose in another case of transexual discrimination. Heather was the Manager of Administration for a pharmaceutical company. She informed management of her desired sex change, and when she planned to make the change to a man. The company was sympathetic but did nothing to prepare Heather's staff for the change.
Lincoln arrived at work and two of his staff immediately went out on stress leave. Following these incidents there were a series of other incidents. Lincoln felt his concerns were not being taken seriously by management so he lodged a complaint w ith the Equal Opportunity Commission and went out on stress leave. He and the company eventually decided that he should leave his employment and they offered him a termination package. By this time, many months since he first came to work as a man, he w as very angry and rejected their offer. He remains on stress leave and the matter is unresolved.
And now to David Paul Jobling vs South Australian Education Department. David Jobling was an artist, appointed as an artist-in-residence for a short term contract in a primary school in Jamestown, a small town in northern South Australia.
David was gay and HIV positive. These facts became widely known in Jamestown and community support for David and his program was then very divided. Many parents claimed they would not have a homosexual teach their children, whilst others focussed on David's well known skills and supported the program going ahead. The school in Jamestown felt they were managing the conflict but the Education Department after much deliberation decided to withdraw the program. The then Director General of the Edu cation Department personally went to Jamestown, arriving late in the evening, the day before the program was due to start, and cancelled it.
David lodged a complaint of discrimination under the Equal Opportunity Act claiming he had been denied his contract employment on the grounds that he was homosexual and/or HIV positive.
In their defence the Department claimed it was an inherent requirement of the position that the person be "acceptable to the community". Clearly it is less likely that a homosexual man who is HIV positive would be acceptable to the community of Ja mestown, so a very strong argument was put to the Equal Opportunity Tribunal that David was a victim of indirect discrimination. His ability to do the job was not in question. He simply did not "fit in". And of course, the discrimination he faced was d ue to stereotypes and misinformation about homosexual men and AIDS and the risk it is supposed to present to the community.
As I have said the case was heard before the Equal Opportunity Tribunal which found that David Jobling was unlawfully discriminated against. He was awarded $60,000 in compensation. The Education Department appealed the decision to the Supreme Cou rt which commenced the hearing, but the matter was settled out of court. Hansard of the South Australian Parliament reveals the actual settlement was compensation of $40,000.
The fallout was enormous. Controversy raged. The private values of the individuals involved were clearly challenged as were the collective values of some sections of the South Australian community. The structures of the Education Department have since been changed. And it is most unlikely that another homosexual person would ever again be subject to such treatment, or, to be realistic, at least not so openly.
Has the Equal Opportunity Act in 10 years achieved its aims?
To conclude, let us consider whether the Equal Opportunity Act has achieved its aims or come close to achieving them over the past 10 years. Perhaps first we need to remind ourselves of those aims. I believe there are three.
The first is to protect people against discrimination on the grounds of sexuality.
The second is to provide a remedy for any person whose rights are violated.
The third is for the Equal Opportunity Commission (which is charged with the administration of the Equal Opportunity Act) to assist those people whose rights have been violated, to foster unprejudiced attitudes, to educate the community about the s tandards of behaviour which have been deemed by the law to be acceptable and to facilitate and accelerate the change process by using legal mechanisms which correct clear inequalities.
Does the existing law work?
Before I answer the question it is useful to reflect on the measure we can use to determine whether or not the law works. The best measure I expect is the one many of you will know. I quote Martin Luther King: "Morality cannot be legislated but behav iour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."
Has the Equal Opportunity Act over the past 10 years achieved its aims? Let's look for the answer in the case I have just described: David Jobling vs South Australian Education Department.
In my view all three aims of the legislation were to some degree achieved.
David's right to employment free from discrimination was affirmed.
The violation of this right was publicly condemned and redress achieved.
The structures and policies of the Education Department were changed to make it unlikely that another gay or lesbian person would be treated in the same way; and the very open and public debate about the case in the community and the media served t o educate people about the importance of protecting basic rights.
While I am sure the law did not change the hearts of some people in the Education Department, in Jamestown and in the wider South Australian community, it did indeed restrain the heartless. I want here to emphasise and acknowledge the importance o f David Jobling's courage and tenacity proceeding with his case to its conclusion. So in that instance the Equal Opportunity Act worked.
Finally then, what conclusions can we draw from the South Australian experience? We know, that for the law to work, it must be adequate to the task. Is the law adequate if it relies on the complaints of individuals to protect people generally aga inst discrimination? Is the law adequate if there are two states in Australia without such laws, and at the federal level, a law which provides very limited protection against discrimination on the basis of a person's sexuality and even less enshrinement of those rights in the statutes?
We know, that for the law to work, its administration must be impartial and fearless. If the threat of controversy fetters its operation then the law becomes inadequate.
We know too, that if the law is to work it must be used, and used by people who have the support of their own community in pursuing justice, which is never a quick or easy thing to do. It is however, a necessary thing to do if our community is to continue its evolution towards real maturity.
Notes
[1] Definition: "sexuality" is defined as:
[2] Discrimination on the grounds of sexuality is unlawful in the areas of:
Anomolies
[3] Sexuality complaint statistics
Year Number Percentage 86/86 14 3% 87/88 18 3% 88/89 12 2% 89/90 19 2.5% 90/91 10 1% 91/92 16 1% 92/93 27 3% 93/94 26 3% 94/95 30 3% 95/96 14 2%