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Legal and Constitutional Affairs Legislation Committee - 24/01/2013 - Human Rights and Anti-Discrimination Bill 2012

CARPENTER, Morgan, Secretary, Organisation Intersex International Australia

HORNER, Mr Jed, Policy and Project Officer, NSW Gay and Lesbian Rights Lobby

KOONIN, Dr Justin, Co-convenor, NSW Gay and Lesbian Rights Lobby

WILSON, Gina, President, Organisation Intersex International Australia

Committee met at 9:04

CHAIR ( Senator Crossin ): I declare open this public hearing for the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into the exposure draft of the Human Rights and Anti-Discrimination Bill 2012. The bill seeks to simplify and clarify the existing anti-discrimination framework by consolidating the existing Commonwealth anti-discrimination legislation into a single act. The inquiry was referred by the Senate to the committee on 21 November 2012. The reporting date for the inquiry is 18 February 2013.

We have received a large volume of submissions for this inquiry. We have published almost 800 of these on the website. Due to resource constraints, the committee has decided not to publish on its website every submission it has received from individuals.

Today's hearing is open to the public, and it is being broadcast within Australia's Parliament House in Canberra and also live via the website of the Parliament of Australia. A transcript of today's hearing will be placed on the committee's website when it becomes available.

I am going to ask witnesses today to just give us a very brief opening statement of a couple of minutes. That allows us to spend more time on questioning. I want to remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee. Such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. The committee prefers that all evidence be given in public, but under the Senate's resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If a witness objects to answering a question the witness should state the ground upon which the objection is taken, and the committee will determine whether it is insisting on an answer, having regard to the ground which is claimed. And, of course, if we insist on that answer you may request that the answer be given in camera.

I now welcome representatives of the Organisation Intersex International and the New South Wales Gay and Lesbian Rights Lobby. We have submissions from both of your organisations, which we have numbered 12 and 387 for our purposes on the website. I am going to ask you to make some opening statements and then we will go to questions.

Dr Koonin : Thank you for the opportunity to appear today before this inquiry. The inclusion of sexual orientation and gender identity as protected attributes under anti-discrimination law has been a longstanding goal for the gay and lesbian rights lobby, and many within the broader LGBTI community. We commend the government on developing this bill and look forward to its passage through parliament. The bill will provide consistency, clarity and in many cases protections where few existed before for LGBTI Australians. There are, however, areas in which we feel that the bill could be improved. Of those mentioned in our submission, we would like to particularly highlight two.

The first is the necessity of including intersex status as a separate protected attribute under the new laws. It is clear that intersex people are not adequately protected under the draft bill or under existing state or territory legislation. We strongly support the claims made by OII Australia and others for explicit protection along the lines of the Tasmanian Anti-Discrimination Bill 2012, which has passed the lower house in that state. Intersex people are some of the most marginalised in our community, and a bill that fails to protect them is clearly deficient.

The second major area where we feel that the bill could be strengthened is in relation to exceptions for religious organisations under section 33 of the exposure draft. We recognise that this is a complex issue and that different sets of competing rights need to be considered and evaluated. Freedom of religion is an important right in a democratic society like ours, and we respect the right of individuals to practice the religion of their choice. However, freedom of religion is not an absolute right and should not be used to deprive others of their rights to live their lives free from discrimination or their right to the highest attainable standards of health and education. There is an important distinction between functions of an organisation that are inherently religion, such as the selection of priests, and those where the organisation is essentially acting as an extension of government in the provision of goods and services, particularly where they are funded by the government to do so.

Internationally, anti-discrimination law in countries including the UK, South Africa and New Zealand makes this distinction clear. We strongly support the limitation to exemptions in the provision of aged care services, which is consistent with the government's new national LGBTI ageing and aged care strategy. Elderly people are particularly vulnerable and may not have a choice over the aged care services they receive. However, the decision to remove aged care services from the ambit of exemptions and not other services—including health, education, disability and social services, which also deal with vulnerable people—is arbitrary.

Over the past few weeks we have heard hundreds of stories, which we would be happy to share, of bullying, vilification, physical assault and harassment on the basis of sexual orientation and gender identity from teachers, cafe workers, patients seeking health care, schoolchildren and members of the Australian community accessing essential services funded by the government, often in organisations that would be exempt from the law under the current exposure draft. It is difficult to see how this kind of treatment can be justified by the rhetoric of avoiding injury to religious sensibility. Moreover, it is difficult to see how LGBTI people accessing these services could feel safe if employees are subject to discriminatory practices and policies. Therefore, limitations need to apply to employment in these areas as well.

Where it is proposed that exemptions be relied upon, they need to be transparent and publicly available, as members of the public are entitled to know that there is a risk of discrimination if they engage with the organisation in any capacity. This government has committed itself to tackling discrimination against LGBTI people in Australia. This bill is a significant step in that direction, but it should be even better.

Gina Wilson : Our primary concern is to make it really, really clear what intersex is and to draw the distinction out between intersex and the other characteristics that are protected in the act. Intersex is physical difference of sex—anatomical physical differences. It is not a matter of identity; whether we identify as male, female or something else, our physical differences are the things that draw prejudice and attention to us. What concerns us with the draft legislation is that intersex is framed in a way that seems to place us in some way along with gender identity. Intersex is not a matter of gender identity; intersex is something that we are born with. I, for instance, have congenital adrenal hyperplasia. There are other ways to be intersex. For instance, androgen insensitivity syndrome, being born with extra chromosomes such as XXY or lacking a chromosome such as XO are all ways of being intersex. Irrespective of whether we identify as, for instance, female and act as a woman and have had 'female' on our birth certificates since the day we were born, we are still subjected to prejudice that is, by and large, a sort of homophobic prejudice.

The idea that our anatomy is somehow or other different takes people along the path of viewing us through the lens of 'gay' or 'queer' by nature—that somehow because our anatomy is not perfectly male or perfectly female, or not quite male or not quite female, then somehow the nature of our relationships is uncertain and the way we relate to the rest of the society is uncertain. So we tend to end up being subjected to the same kinds of homophobic abuse and the same kinds of homophobic exclusion as the LGBT group, irrespective of how we identify and irrespective of our sexual orientation. So, what we think is really, really important is that intersex is a protected attribute and is not included as discrimination on the basis of gender identity but included on the basis of discrimination against intersex people.

Senator BRANDIS: I just want to explore with you the religious exemption issue. Do you accept that there is a distinction between being the recipient or a purchaser of a service—for example, a gay person who is looking for nursing home care; gay parents who want to send their child to a church school; or a secondary school student who is identified as gay, and obviously want to go to school and wishes to go to a church school—and advocacy?

The proposition that I am putting to you, and that I invite you to comment on, is this. I can well understand why people in the position I have just described should arguably be protected by antidiscrimination law. But take the case of a teacher who wishes to proselytise the moral equivalence of gay relationships—which is a perfectly available, legitimate point of view—or might themselves exhibit a gay relationship and who, whether one agrees with them or not, advocates, as a teacher, conduct profoundly at variance with the teachings of the church which conducts the school—whether it be a Muslim church school, a Catholic church school or any one of a number of other religions whose teachings do not permit homosexual conduct. Do you accept that the churches, as an aspect of their capacity to exercise their religious freedom, and to teach their own faith in their own schools—albeit schools that may be partly publicly funded—are entitled to say, 'Our core missions is to educate according to the tenets of our faith and this particular prospective teacher is an advocate of an ethic or a way of life at variance with the teachings of our own faith.' Do you accept that that is an aspect of their religious freedom? Whether you do or not, do you, in any event, accept that that case—the employment of a teacher in a school—is somewhat different from merely being a pupil in a school or the parents of a pupil in a school or, in the earlier example I gave, the recipient of services in a nursing home and so on?

Dr Koonin : Yes, I do accept that there is a distinction between someone accessing goods or services and someone acting in an employment situation. As I said in my opening remarks, there is a complex set of different competing rights that need to be evaluating. Our concern is for the wellbeing of people, and in particular people who access those services. In the case of schoolchildren we know that young people who grow up and are educated in environments which do not accept their sexual orientation or gender identity have significantly higher rates of mental health issues and significantly higher rates of suicide.

In the case of age care facilities we find it difficult to understand how LGBTI people accessing those services could feel safe if employment practices in the services are subject to discriminatory policies or practices. It is a difficult issue but we are particularly concerned that the government would consider funding these services which demonstrably cause harm to people in our community.

Senator BRANDIS: Are you therefore advocating that no church schools which are blind to this issue should ever be funded by government?

Dr Koonin : We would strongly advocate that schools which receive government funding should not be able to discriminate. We recognise that there are people who oppose that strongly but that would be our—

Senator BRANDIS: Even in relation to the employment of teachers who might wish to teach at variance from the church school's tenets of faith? If so, what does that do for religious freedom, or do you merely say that religious freedom is a second-order value that does not matter as much as the issues that you have been addressing?

Dr Koonin : Again we come back to the issue of competing rights. The primacy in our argument is concerned for the wellbeing of the young people, and we have ample evidence that the wellbeing of young people wherever they are educated is served by being educated in an environment which supports their sexual orientation and gender identity. The particular issue of education we recognise is a complex issue.

Senator BRANDIS: But that is not a rights-based argument. You are saying that the right of a church to conduct a school in accordance with its religious teachings is less important than the wellbeing, as you would say, of the gay students who may or may not be sent to that school. Is that your point? That is not an inconsistency between two different rights type of argument.

Mr Horner : The issue is that education is a collective right and I think it is confirmed in a number of UN treaties. I would frame religion as being an individual right, and certainly in the United Nations Declaration of Human Rights it is an individual's right to practise their religion individually and in community with others, but where the exercise of that right interferes with the access of young people in particular to a high standard of education, that is clearly a conflict. I would have concerns about that.

Senator BRANDIS: Most schools in Australia are not church schools. People who have that objection have a choice. We hear all the time from public sector teachers unions how good public schools are, and I agree with them. Why are those people being disadvantaged by saying, 'If you don't like the tenets of the Muslim faith then send your kid to the local state school where these issues will not arise'? Why is that a violation of anyone's rights?

Mr Horner : Young people often find themselves in situations not always of their own choosing as well, very young people at primary schools and the like who are coming to terms with their own sexuality. So I do not necessarily accept the choice based argument you are using, which is from an adult's perspective it is a free exercise of choice and they are there because of that. I think there are issues where institutions are in receipt of public funding and the actions or policies of that institution, as my colleague has just referred to, conflict with their right to enjoy a decent standard of education. We have seen that through stories of discrimination faced by LGTBI young people in educational institutions, including schools, and we have plenty of examples of teachers as well and also student teachers coming to terms with their sexuality in those schools in a not very conducive environment for creating a new generation of Australian teachers.

Senator BRANDIS: I should give my colleagues a go, but Sir Robert Menzies, Australia's greatest education prime minister, decided to fund church schools in 1964 and then a few years later Gough Whitlam brought a reluctant Labor Party to the party to go along with the lead the Liberal Party has established in that field. Ever since nobody has ever said that state funding of religious schools should be conditional on what those religious schools teach in the profession of their faith.

Senator PRATT: I will begin by asking Intersex Internationale if they have any particular perspective on religious exemptions for schools, noting that we are talking about biological characteristics. I think in particular the Christian Schools Association made reference to the manner in which they would deal with such issues.

Morgan Carpenter : The Australian Association of Christian Schools, who you heard from yesterday, did say in their written submission—I do not think it was raised during the verbal session—said:

In relation to the issue of 'gender identity', AACS and its member schools have great empathy for those who face a daily conflict related to physical genital ambiguity or hormonal dysfunction. However, these issues are best handled with sensitivity and pastoral care rather than by the 'heavy hand' of the law.

That gives an indication that they see intersex as being different to the rest of LGBT.

Our fear is that, as things currently stand in the proposals, putting intersex as a biological status in with gender identity, what you will see is the ability of religious schools to discriminate against people who have androgen insensitivity syndrome, an additional chromosome, congenital adrenal hyperplasia or a range of other intersex variations. So you could see situations where, because of our biological make-up, we are facing discrimination.

Senator PRATT: So you would like to see, if religious exemptions were to continue, intersex status specifically taken out of those exemptions?

Gina Wilson : Certainly. To allow anybody to discriminate against intersex people and to allow religious organisations to have an exemption from the law is no different to allowing a religious organisation to discriminate on the basis of colour of skin or a disability that you were born with.

Senator BRANDIS: No, it is not, because there is an ethical difference.

Gina Wilson : We are born differently.

Senator BRANDIS: The church says, rightly or wrongly, that in its view certain behaviours are sins. You might have said to that—

Gina Wilson : Senator Brandis, this is not about our behaviours.

Senator PRATT: Senator Brandis, I have the call.

CHAIR: We know that.

Gina Wilson : It is not a matter of our behaviour; it is a matter of how we are born. We are not behaving like anything. It is not a matter of sexual orientation. We have the same range of sexual orientations as the rest of the community. It is not about our gender identity. We have the same range of gender identities as the rest of the community. It is about how we are physically born. That is like if a person is physically born with black skin. If you give a religious organisation the right to discriminate on the basis that they were born with black skin, that is the same as giving them the right to discriminate about people who were born with anatomical differences of sex. Because my genitals are different or because my hormones are different, they have a right to exclude me from service, exclude me from a school or exclude me from employment, and that just seems bizarre—because of the way I was born, because I was born physically different. It is not a choice. It is not an orientation. It is not an identity. I was born physically different.

Senator PRATT: Do you have some examples of the kind of discrimination that we are referring to here that intersex people have experienced?

Gina Wilson : I will give you a personal example from me. I was in hospital for a hysterectomy. I was moved to a maternity ward because of available beds. I was attended to for some time in the maternity ward. The sound of my voice and my physical appearance upset some of the other women in the maternity ward. I was moved to a separate room. The separate room was in fact a large storage room that had been cleared out and had my bed and a heart monitor and all those things pushed into it, because of my physical differences. It was not because of my identity. They would not have a clue what my identity was, although they may have assumed things about me, but it was my physical differences that upset the other people in the hospital.

Senator RYAN: I will follow on from Senator Brandis, Dr Koonin and Mr Horner. If your argument—if I am correct—is, on the schools issue, that the school is in receipt of public funding and therefore should be required to comply with certain terms, why does that not extend to the content of what they teach? From what I heard you say to Senator Brandis, you only want their employment policies, for example, but you alluded to the mental health impact of younger people having issues with what they are taught or the environment they are in. Do you advocate that the content of a curriculum at, for example, a church school or a religious school should comply with some Commonwealth law, because that is part of the environment that you alluded to?

Mr Horner : What we are referring to primarily is service provision, so the employment thing is of concern to us, but I think it is somewhat of a secondary concern. We are more concerned about young LGBTI people and their access to education—

Senator RYAN: We have accepted that it is not about access to education. I would be hard put to think of a case in any suburb in Australia where there are church schools and not state schools, so it is not about access to education. What it is about here is access to a subset of that—access to, for example, a church education or a particular school, because it happens to be a couple of kilometres closer to home. You are saying that their employment policies should be enforced by this law. Why does it not go to what they teach? Surely that is part of the environment that you are referring to.

Dr Koonin : I think we can regulate to an extent. Our primary concern is the extent to which the government is actually funding.

Senator RYAN: Okay, so it is about the mechanism of funding. What if we had a voucher, so no school received a cheque from the government at all; it actually went with the student? The students would have the money. The parents would pay it to the school. I am presuming it would not alleviate your concern?

Dr Koonin : We would strongly prefer that schools did not teach their young people that having diverse—

Senator RYAN: I would strongly prefer that schools did not teach some of the stuff they teach at the moment too, but we do not have that—

Dr Koonin : I was about to say the same thing you were: we cannot control everything.

Senator RYAN: Okay.

CHAIR: I think we will focus back on the legislation.

Senator RYAN: On the legislation here, one of the profound concerns about this is the slippery slope. These very arguments about the impact on the religious exemption were used against this legislation when it came into power and it was amended over the course of the last 20 or 30 years, and the people who predicted that the religious exemption would go were laughed at. Now we are actually arguing about that, and you are putting forward that view, so I am putting to you: if you are going to regulate their employment policies, how can you provide me with confidence that you will not be coming back in five years, doing what Senator Brandis said and starting to say, 'We want to impact on what you teach'?

Mr Horner : With respect, I think that is jumping the gun quite a bit. If we look at comparative jurisdictions, let us look at a real, concrete case study. Let us look at New Zealand laws, and let us look at the provision of goods and services. It covers all public goods and services, including in the context of education. The issue there is that they have found a way to do that and also provide a way for people to run successful religious educational institutions—which, by the account of some of the Catholic education providers, are growing—in a way that does not have some of the discriminatory provisions of what—

Senator RYAN: So you are saying you do not think there is any role for law whatsoever, ever, for schools that might teach values not only which you find offensive and I may find offensive but which you could come back here in five years and say have a real, negative, detrimental impact on young LGBTI people's development as they are coming out?

Dr Koonin : That is not in our submission, and—

Senator RYAN: Yes, but I am worried about what we are doing next—

Dr Koonin : I cannot—

Senator RYAN: and this law is part of that.

Dr Koonin : Worrying about what is going to happen in 20 or 30 years is a poor reason not to make changes which are going to demonstrably affect people's lives today.

Senator RYAN: But a law that leads—to understand the perspective of those who have profound concerns about this law. There are people who predicted that the racial and religious vilification provisions would lead to a journalist being pulled into court for what they said. That has happened. It has not just happened about Holocaust denial. There are people who said when these equal opportunity acts came in that eventually lawyers and lobby groups would come forward and say we should be regulating the private sphere, including religious schools, and we are here doing that today. And we have terms like 'political opinion' going into this exposure draft. So the ability of a church school or a values based school in some way to remove a teacher, even from one particular class, because they may espouse political opinions that are contrary to the values of the school—and why parents send their kids there—is now under challenge.

CHAIR: We are going to have to wind that up now. A quick response, and then I am going to leave it there.

Mr Horner : I really think that the slippery slope argument does not hold much weight, because, as I said, if you look at a real, comparative context where what we are proposing works in practice and where religious educational providers are still able to do their work and teach largely in accordance with the tenets of their faith, and to the best of my knowledge no-one else has raised arguments, come back five years later and said, 'We want these institutions disestablished,' or something radical, that has not happened, so I do not accept the argument.

Senator RYAN: I just encourage you to read the transcript of hearings like this 10 and 20 years ago, and you will find this very argument being illustrated.

CHAIR: Senator Furner, we will go to you.

Senator FURNER: I might just get your opinion on the record of the view expressed by several submitters about the suggestion of altering the definition of 'sexual orientation' to 'sexuality'. One of the witnesses will be appearing this afternoon. I would like to hear your opinion of why we as a committee should not consider including that as a definition.

Mr Horner : Not at all. In our opinion, the definition that is in the bill largely aligns with the Yogyakarta Principles at an international level, and certainly, if you compare it to other pieces of legislation in countries such as New Zealand, again, and in existing state and territory jurisdictions in Australia, it is more favourable. For instance, in the legislation in New South Wales it does not currently under anti-discrimination law, but this will include bisexual people. There are a lot of positives to the usage of the wordage 'sexual orientation' as opposed to 'sexuality', which is construed in a much narrower sense. It is almost an academic term and is also used in popular discourse. But sexual orientation is internationally accepted terminology and best practice.

Dr Koonin : In this we support the submission of the Victorian Gay and Lesbian Rights Lobby. I draw your attention in particular to points 4.5 and 4.6 of their submission. They are essentially as outlined by Mr Horner.

Senator FURNER: In fact, the proponents of that change indicated that it would be more inclusive as a term, taking on board sexuality as defined as including sexual attraction, identity and behaviour. You do not consider that word to be appropriate to capture all of those areas?

Mr Horner : Not at all, especially if you are talking about riders. You are talking about attaching behaviour to identity and the like. The term 'sexual orientation' as it is set out in this bill captures this adequately. I have to say that I have not read many submissions whose authors have taken issue with the use of the terminology 'sexual orientation'. I do not accept that 'sexuality' is an adequate term to replace 'sexual orientation' with at all. As I have indicated, international 'sexual orientation' is the accepted terminology. It would be a departure from international practice that would be unfortunate.

Senator WRIGHT: I would like to go back briefly to the religious exceptions issue. You referred to New Zealand. I would like to come back a bit closer to home. In Tasmania, over 10 years ago religious exceptions for organisations and bodies, including schools, were removed. I have not heard any evidence in the inquiry so far that adverse impacts have come about because of that. Are you aware of the situation in Tasmania? I know that you are from New South Wales, so perhaps you are not. Do you want to comment on that?

Dr Koonin : We are certainly aware of the situation in Tasmania. We are in regular contact with advocates in Tasmania. We have not heard anything adverse about the situation in Tasmania, either. Possibly the fact that the laws have changed in Tasmania to largely remove religious exceptions and the world has not fallen in is perhaps an antidote to the fear of what might happen in 10 or 20 years time, because it has happened in our country and as far as I know Tasmania, its laws and its people are still fine.

Senator WRIGHT: The Tasmanian Anti-Discrimination Commissioner said yesterday that indeed there is a balancing of rights that appears to be working well in Tasmania from the evidence that we have had. I have not heard any evidence to the contrary. I want to go now to OIIA. I want to clarify this, because information about and understanding of what you are putting to us is really important. Possibly there is public misunderstanding about the difference between someone who is intersex and someone who is transsexual or transgender. I want to see whether my understanding is right. My understanding, from what you have said, Ms Wilson and Mr Carpenter, is that someone who has intersex status is born with anatomical or hormonal features—physiological features—that mean that it is not possible to say clearly that the person is male or female. They may be a mixture of both or not quite either. As a result, that affects the way that they are treated subsequently in society. In some cases, a person or their parents may decide that they need to identify as one or the other gender. Or they may indeed be able to choose not to identify as either gender. My understanding is that someone who is transsexual may be born with a clearly identifiable gender in terms of physiology by do not feel comfortable with and do not identify as that gender and may make a choice at some point to identify as the other gender, male or female. Is that right?

Gina Wilson : That seems like a reasonable summation to me.

Senator WRIGHT: Okay. I have been learning a lot about this over a brief period of time.

Morgan Carpenter : We could table a document that might help to explain in a bit more detail what happens to intersex people as we are born. It is a document that the Swiss National Advisory Commission on Biomedical Ethics prepared in November last year called On the management of differences of sex development. That might explain in a bit more detail—

Senator WRIGHT: I would welcome you tabling that document. Any information would be good. My last question is about this distinction between intersex status and gender identity and why it is necessary to have intersex status as a specific and separate protected attribute. I understand that there have been attempts to use existing legislation to protect against discrimination where intersex has had to be included under gender identity and those attempts have not been successful; it has not worked to protect against discrimination. Can you briefly give some examples?

Gina Wilson : The wording in the draft bill is roughly the same as the wording in the Victorian, New South Wales, Queensland and South Australian legislation. We have attempted to use the legislation in New South Wales on several occasions to address intersex issues where the discrimination was in fact because of biological difference—for instance, ferritin levels in blood when donating blood to the Red Cross, which is a biological difference. There are different ferritin levels for males and females. We have been unable to successfully run any case on the basis of our biological differences. The only time that we have successfully been able to use that legislation is when we have been mistaken for a transsexual or a transgendered person. Under the provisions that talk about discrimination where a person is thought to be transgendered whether they are not, we have been able to win some cases. But they are not cases based on intersex status; they are cases based on being mistaken for a transgender person and having a transgender identity.

Morgan Carpenter : There is a follow-on here as well. We are not just asking for intersex status to be added to the bill. We are also asking for gender identity to be covered in ways that do not limit us to having a genuine male or genuine female identity. I have a passport issued by the government with an x sex marker. The Passport Office stated that that was issued to me 'in line with the Australian government's commitment to remove discrimination on the grounds of sexual orientation or sex and gender identity'. Yet the legislation as it is currently proposed explicitly excludes people like me who do not live up or who do not wish to try and live up expectations of being a genuine man or a genuine woman.

Senator WRIGHT: Does 'x' mean neither male nor female? I want to make sure that we understand what that means.

Morgan Carpenter : In terms of a passport application, 'x' means indeterminate sex or intersex or non-specified sex.

Senator WRIGHT: It is not a third sex.

Morgan Carpenter : It is not a third sex. The Tasmanian government is proposing to have intersex status as a separate thing to the definition of sex, which is great, because—

Senator WRIGHT: Is it an identification that shows that some may have the attributes of both sexes?

Morgan Carpenter : Both, neither or somewhere in between.

Gina Wilson : While we support the use of 'x', it does not specify anything. In using it, we are exercising our right to remain silent on the matter of whether we are male, female or anything in between. It is simply the right to silence.

Senator WRIGHT: It is about not being forced to make a decision one way or the other.

Gina Wilson : Yes. And not being forced into a sex binary. The sex binary does not take us into account and it is better to remain silent on the subject than try and invent some other category that makes things even worse.

Senator HUMPHRIES: I have a question for the Gay and Lesbian Rights Lobby. But before I ask that question, do you have problems travelling around the world with that designation on your passport?

Morgan Carpenter : I have not yet been able to use it. It was issued just over a year ago. I have another passport, so in the event that there might be a difficulty then I have that ability. There were several reasons why I obtained a passport. One was to try and test that situation. But it is also because the most difficult times of life have been when people have made assumptions about me based on my appearance or my voice rather than on my anatomy.

Senator HUMPHRIES: My question to the Gay and Lesbian Rights Lobby is: as I understand your argument, it should not be possible to discriminate against gay and lesbian teachers in church schools because it is damaging to the identity of a young person in a school, who is struggling with their sexuality, to be told that they cannot see a gay or lesbian teacher up there at the front of the class and that that damage warrants removing the discrimination. Why does that argument not then apply to the ordination of priests? Why is it not damaging to a young person not to be able to see an openly gay priest on the altar or, for that matter, a woman on the altar, if we are talking about a Catholic Church?

Mr Horner : We would argue and, obviously, we accept people's right to religious freedom, as I mentioned earlier. Where you are talking about the ordination of priests, we would accept that who they appoint as a priest is inherent in their right to enjoy their religion. We would not have specific issues around who they ordain.

Senator HUMPHRIES: But isn't the argument that if it is damaging to a young person not to be able to see a gay teacher as an authority figure in their lives, why does the same not apply to a priest?

Mr Horner : I spoke about education as a collective right and the right of everyone. Religion, as I have mentioned, would cast more than individual rights, so people have a choice which religion they wish to follow. To become ordained as a minister is a choice that someone makes within the bounds of the tenets of that faith whereas we would argue that in education that should not reasonably exist at all. It is a public good.

Senator HUMPHRIES: You would not view the teaching of the tenets of the faith as being part of the faith?

Mr Horner : Not as a reasonable extension, no.

Dr Koonin : I think that day to day in the classroom in a maths lesson, in an English lesson, the job of a teacher is to educate the young people to do maths and to read. That is not a fundamentally religious process in the way that being a priest is. So we are drawing the distinction between aspects of a role which are fundamentally religious or are integral to the religion and those which are not and that providing a young person with an education which allows them to go to university is not a fundamentally religious activity.

Mr Horner : I suppose what underscores that is the fact that those institutions are in receipt of public funding not only to employ those teachers but to teach those pupils, those students, whereas when you talk about the ordination of priests that public funding aspect does not come into it at all. So it is another, further—

Senator HUMPHRIES: I am not so sure about that. I think there would be very few churches in this country that did not effectively have some level of public funding, either direct or indirect.

Mr Horner : Government funding, indirect.

CHAIR: Senator Pratt, one very quick question.

Senator PRATT: One quick last question for Organisation Intersex International, which comes down to the current definitions as expressed in the bill in relation to the gender—the requirement that intersex people in the current definition be required to identify as one gender or another, particularly given that clearly someone's biology may authentically essentially mean that people's gender expression will be diverse by virtue of biology, noting of course that intersex people may also be subject to a number of surgical interventions as infants that may also create complexities for the issue of identification later.

Morgan Carpenter : As an organisation we believe that gender identity should be covered no matter whether somebody is intersex, transgender or whatever. As there are people who are physically different it is in our interests for society to become more accepting of different forms of expression. We would welcome the decision by the Senate that gender identity should be rephrased along the lines of the proposed Tasmanian bill.

In her submission to the Senate the Chief Justice of the Family Court pointed out that she had made decisions in the Family Court about interventions on intersex children to give them 'the appearance of' one gender or another. We would hate to see a decision by the government that reinforced a rationale that to receive protection under the law children should undergo cosmetic surgery to appear like one sex or another.

Senator PRATT: Because that might not be congruent with someone's actual gender identity or—

Morgan Carpenter : That is correct. There is a Professor Garry Warne in Melbourne, who is responsible for the current protocols that relate to people with XY forms of intersex, and what he has noted is that 25 per cent of such cases experience difficulty with gender they are assigned.

Senator PRATT: Thank you.

CHAIR: All right. I think we are finished with our questions for you today. I thank you both for the submissions that you have provided and your availability this morning to appear before the committee. Thanks very much.