Western Australia’s Equal Opportunity Act became law in July 1985. The Act provides legal protection and a course of complaint for groups or individuals facing discrimination. In the 20+ years since, the Act has had a number of amendments, including the addition of sexual orientation and gender history in 2002; however, until now, the Act has never had a comprehensive review.
This month the Equal Opportunity Commission (EOC) released a comprehensive review of the Act. The review of the Act was announced on 29 March 2006, and over the past year, the Equal Opportunity Commission has reviewed a plethora of submissions to inform its recommendations. As EOC Commissioner Yvonne Henderson told OUTinPerth, ‘The review looks at areas where the Act might be improved.’ She went on to say, ‘We called for public submissions and received in excess of 650 from individuals and groups. We examined all of those submissions and extracted some of the main things from the submissions and then we wrote up the report. We tried wherever we could to indicate what the different views were on each of the different subjects that we addressed.’
From those submissions, the Equal Opportunity Commission made numerous recommendations for a variety of areas. While major media have dwelled mainly on the recommendations made for opening membership in single-sex clubs, the EOC’s review has some recommendations with groundbreaking implications for GLBTI individuals. The review has been welcomed by GLBTI lobby groups as well as GLBTI-friendly politicians for its recommendations regarding homosexual/sexual orientation vilification, gender identity discrimination, and HIV/AIDS vilification.
Louise Pratt MLC praised the review, as ‘notable for its recommendations to tighten religious exemptions, provide protection from discrimination for people on gender expression and identity grounds and to extend anti-vilification to cover sexual orientation.’
Giz Watson MLC also expressed her support, ‘We are pleased with most of the recommendations. It is good to see the vilification issue being picked up. And of course, gender identity, it is good to see that is also being recommended.’ She continued to say, ‘We would hope there would be a response from government to implement drafting for the amendments that have been recommended.’
SEXUAL ORIENTATION VILIFICATION
The Report Says… ‘The Commission recommends that a person should have redress for public acts of vilification on the ground of his or her sexual orientation, which includes, under the Act, heterosexuality, homosexuality, lesbianism, bisexuality, whether actual or imputed, in Western Australia. The Act should be amended to include this ground, in the same terms or similar to racial vilification, an amendment currently being considered by the WA Parliament.’
Currently, New South Wales, Queensland and Tasmania have some sort of protection against vilification on the grounds of sexual orientation. If the EOC’s recommendations are taken up, Western Australia could soon join that list. As Commissioner Henderson explained, ‘To degrade people on the basis of their sexual orientation would be unlawful. We certainly have evidence that there is plenty of that that goes on.’ According to the Act’s suggestions, it would be unlawful to incite hatred or contempt for someone because of their assumed or declared sexual orientation.
While no legislation has been moved to address vilification for sexual orientation, an amendment to add racial vilification to the Act recently passed the Lower House of Parliament and Commissioner Henderson said, ‘We would expect it to be passed this year.’
If the racial vilification amendment passes, some proponents of adding sexual orientation vilification believe it may pave the way for a similar amendment. Giz Watson supported this viewpoint saying, ‘Basically the debates are very similar, that it is inappropriate to vilify people. If we have a good healthy debate about racial vilification, it does bring those issues into the public arena and helps when we debate these other things.’
GENDER IDENTITY DISCRIMINATION
The Report Says… ‘Western Australia is the only state and territory in Australia that does not recognise gender identity or transsexuality discrimination, and there is evidence of discrimination against persons of indeterminate, or non-birth gender identity, the Commission recommends that the Act be amended to include this ground.’
Commissioner Henderson explained that while WA was one of the more progressive states when the laws were first enacted, in the passing decades, other states have enacted more comprehensive legislation. She believes that if the EOC’s recommendations are followed, WA will once again be at the forefront, especially with regards to gender identity issues, particularly those of intersex individuals.
‘It is recommended for example that the protection of the Act be extended to people who don’t have a gender reassignment certificate, but who have determined that they wish to be a sex different from their birth sex. They are people who are particularly vulnerable and we have found they are not protected. So, it is proposed that should be a ground under the Act. There are also people who wish to be or consider themselves to be intersex, rather than one sex or the other, and we have made reference to this as well, that they should be protected,’ Commissioner Henderson said.
These recommendations have been lauded by lobby groups. Men’s Australian Network (MAN), whose submission received specific mention in the review, said ‘MAN is pleased that the gender identity attribute has been recommended as an outcome of this review. Accepting and affirming diversity will in our view strengthen the Western Australian community. We look forward to the introduction and enactment of legislation implementing the recommendation.’
The WA Gender Project (WAGP) also made submissions and was Aram Hosie of the WAGP was equally pleased with the review, ‘It is long overdue for the Equal Opportunity Act to further recognise gender identity. Currently, the Equal Opportunity Act only covers people with a gender reassignment certificate [and] fails to cover people while they are transitioning in the work place, which is a highly vulnerable time for people. We are also concerned about exemptions that may remain for competitive sport.’ He continued to express, ‘hope that the provisions regarding vilification will be extended to cover gender identity grounds.’
However, not all submissions supported extension of the act to cover gender identity discrimination. When OUTinPerth asked Commissioner Henderson about dissenting submissions, she explained, ‘Most of the submissions that were detailed, thought out submissions, recognised that people were often discriminated against on the basis of their gender identity… There were, however, some submissions that were almost like form petitions. They were almost identical and a lot of those submissions opposed any extension of the act to include rights for people in regards to their sexual identity.’
She went on to defend the review, saying, ‘the review really speaks for itself. We have obviously weighed up those submissions, and we have acknowledged them in the body of the report, but our view is that there is enough evidence that these sort of revisions are necessary to provide protection to people and that people do suffer discrimination on the basis of their sexual orientation and that people are particularly vulnerable when they are undergoing sex change of one kind or another.’
HIV/AIDS VILIFICATION
The Report Says… ‘HIV/AIDS related vilification is unlawful in NSW. HIV and AIDS are impairments within the meaning of the Act. The commission recommends that the Act should be amended to include impairment vilification as a ground.’
While not discussed in as much detail in the Act as gender identity discrimination and sexual orientation, HIV/AIDS vilification did receive specific mention in a section for impairment vilification.
WHAT HAPPENS NOW?
Now that the report has been released, ‘The next stage would be for government to decide which of our recommendations they wish to accept… Out of that would come an act or bill to amend the Equal Opportunity Act,’ Commissioner Henderson said.
Members of parliament in support of the act have called for members of the community to campaign for legislation. Giz Watson told OUTinPerth, ‘I would encourage, particularly our community to write to [Jim] McGinty in support of the recommendations to indicate that we are happy to see them and would like to see them drafted as soon as possible, particularly in light of the fact that there has been an entirely predictable negative response in the West Australian.’
Louise Pratt explained the importance for members of the community to get involved in the debate, ‘The fact that these are the recommendations of the EOC Commissioner does not necessarily mean they will have the support of the whole of Parliament or the community. There will be a need to continue to raise community awareness and lobby parliamentarians about why these changes are important.’
