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

HUGHES, Associate Professor Mark, Southern Cross University

Evidence was taken via teleconference—

CHAIR: Welcome.

Prof. Hughes : I am an associate professor in social work and social welfare at Southern Cross University. My capacity relates to my research in LGBTI ageing.

CHAIR: We have your submission, which we have numbered 428. I am going to ask you to make some opening comments or to speak to that and then we will go to questions.

Prof. Hughes : Thanks very much for the opportunity to speak with you today. My comments relate mainly to my experiences as a social worker and academic specialising in aged care service delivery. Over the last 10 years I have been involved in a program of research on lesbian, gay, bisexual, transgender and intersex ageing. This has included qualitative research into older lesbian and gay people's experiences accessing health and aged care services and a quantitative analysis of Healthy Communities survey of 443 lesbian, gay, bisexual and transgender Queenslanders. I am also currently involved with Evergreen Lifecare in a survey of the health and wellbeing of LGBTI people in New South Wales.

I think the evidence from my own and others' research both Australian and international indicates that LGBTI seniors do experience discrimination accessing and receiving health and aged care services. I have had relayed to me stories of discrimination including physical abuse by residential care staff, hospital staff failing to involve same-sex partners in decision-making and counsellors and social workers making inappropriate assumptions about people's lifestyle. In the Queensland survey approximately 40 per cent of those who had received aged-care services reported a negative experience in relation to the treatment of their sexual orientation or gender identity. Just as significant, though, as people's experience of actual discrimination is their fear or expectation of discrimination and the consequent harm this produces. LGBTI seniors, as we know, grew up in an era when homosexuality was criminalised and mythologised, and this message that discrimination of LGBTI people is acceptable has been reinforced by the longstanding exemptions for religious bodies in our anti-discriminatory laws.

In the Queensland survey I was involved in, 43 per cent of the 443 respondents were concerned and fearful that aged care providers would be discriminatory, 42 per cent were concerned that services would be provided by religious organisations and 52 per cent feared that their same-sex relationships would not be properly recognised. I think there is substantial evidence from Australian and overseas research that demonstrates that fear of discrimination impacts negatively on health seeking behaviour and preparedness to access services. The implication is that it is not only the current experiences of discrimination which impact on health and wellbeing but also past experiences of discrimination.

Given the findings of my own and others' research, I strongly support the prohibition on discrimination by aged-care services run by religious organisations. My own experience as a social worker has taught me that decisions to access community and residential aged care services were often made in crisis situations such as having been diagnosed with a major illness or having been admitted to hospital and certainly in the context of scarce resources. So rarely are people in the situation where they can shop around for the least discriminatory service, especially if they live in regional and rural areas. For me it seems inhumane that publicly funded aged care providers should be allowed to discriminate against some older Australians solely on the basis of their sexual orientation or gender identity.

I have mentioned now the significance of discrimination across the lifespan of older LGBTI people and its impact on health seeking. I also request that the committee consider amending the draft bill so that discrimination by religious organisations is prohibited in all the delivery of publicly funded community services, including services to young people. Protection of older LGBTI people from discrimination will not solely be achieved by prohibiting discrimination when accessing aged care services. It also relies on them not being discriminated against when accessing other services earlier in their lives so that they do not come to fear discrimination later in life. Also, if aged-care providers are to demonstrate that they are not discriminatory towards consumers, surely they must also maintain non-discriminatory practices in recruiting their employees.

As noted in the submission, I also support the definitions of relationships status and sexual orientation in the draft bill and request that the committee consider including intersex as a separate protected attribute and defining gender identity in line with the Tasmanian legislation. And I support calls for the appointment of a commissioner on sexual orientation and gender identity discrimination. Thank you.

CHAIR: Thank you, Professor Hughes. Quite a number of submitters have suggested the appointment of this additional commissioner inside the Human Rights Commission. Do you not feel that the work and the role could be picked up by one of the other commissioners who is there?

Prof. Hughes : It does not seem that the other commissioners have particular remit in this area. When we think about older LGBTI people in particular we need to understand the complexities of discrimination that impact on people and the subtleties of it. I think it really deserves specific focus, attention and resources to be able to uncover some of those issues and explore the implications for older people.

CHAIR: Would you not expect Commissioner Susan Ryan to perhaps look at this subgroup of people in her Ageing portfolio?

Prof. Hughes : Sure. It should be addressed in that portfolio as it should in other areas where there are intersections. But, as I have mentioned, what is really important in understanding this issue is the life span context of people. The impact on older people is affected by their experiences earlier in life. We know that about ageing generally, and it is particularly the case for older LGBTI people. So we need to have focus and understanding of how patterns of discrimination unfold across people's life span and what the implications of that are for people at different points of their life span and, from my perspective, certainly the implications for older people.

Senator PRATT: I note that you said that people do not have the capacity to shop around when they are in such vulnerable circumstances. You had a dialogue with, I think, both the Australian Catholic Bishops Conference and HammondCare about the recognition that, according to their doctrine, there are certain services that they will not provide—hormone treatment for someone on the basis of gender identity being one such example. But essentially they did not have any problem with people going elsewhere in order to access such services. I suppose what you are saying reflects the fact that often there is not that diversity of choice in services for people?

Prof. Hughes : Absolutely. The number of services providing community aged-care packages, certainly in rural and regional areas, even in urban areas, can be very limited. We all know the pressures that hospitals are under to get older people who need long-term care placed in residential care. Many people experience difficulty in actually accessing those kinds of services. I think the reality is that LGBTI people will continue to access those services but in order to access those services they will have to conceal their identity in those environments and that will have very negative impacts on their health and wellbeing in that kind of environment.

Senator PRATT: Even just knowing whether the local service retains the right to discriminate or exercise an exemption is not enough, because there may be no alternative?

Prof. Hughes : Absolutely. If you talk to health and aged-care workers across the sector, particularly in regional and rural areas there is just simply not that choice available in the Australian system. I think it is disingenuous to believe that there is that kind of choice available.

Senator PRATT: Would you see it desirable that the Anti-Discrimination act include a provision that permits government to require service organisations to adhere to the Anti-Discrimination Act and not to exercise exemptions in certain contracts for care?

Prof. Hughes : Yes, absolutely. It needs to be enshrined in the legislation that there are no prohibitions for the delivery of Commonwealth-funded community services, including aged-care services. I would also make the point that if we are really concerned about discrimination in aged-care facilities, then we would also be looking at the workforce. The government introduced the National LGBTI Ageing and Aged-Care Strategy last year. There are some excellent components to that. But that will all be for nothing if some organisations are able to continue to discriminate in terms of both the workforce environment and people's access to that service.

Senator PRATT: HammondCare articulated—and I think other organisations would—that when people are living together it is a community, and it is quite fine to be able to promote yourself as conducting yourself according to a certain ethos and that therefore you expect people living there to do so as well. I suppose, in an ideal world where there is true multiplicity in the services available, that might be fine but surely when a government seeks to say, 'All people irrespective of their attributes should have access to a service,' the service that the government wants to make available has to trump the other requirements.

Prof. Hughes : Certainly we need codes of conduct and codes of practice in residential facilities, and we have the Charter of Residents Rights and Responsibilities, which residents and providers are obligated to. But the reality is that any age care facility does reflect, inevitably, the diversity of the community. Some people will be in there because they choose to be there because of the values that the facility or the operator holds. But some of those people may be there because that is the only option they have available to them. It is simply not going to be possible to put those kinds of restrictions on the people who are living in that environment.

Senator PRATT: Should the government, in looking at this issue, decide to say, 'We could make it a universal standard that no-one is allowed to discriminate,' but surely there may be small communities of people you might like to give the right to opt, out on the basis that there is some choice in some circumstances and it would be a better way to organise it, rather than these universal exceptions that currently exist in relation to community services.

Prof. Hughes : Yes; I guess, possibly, you could make a case in relation to that but I think it would be the thin end of the wedge. If we do not want discrimination happening in age care settings then I think we need to make that very clear to all providers. If people are prepared to completely fund their own care and if HammondCare or other organisations were prepared to raise funding in other ways that would be fine but the concern for a lot of people, myself included, is that taxpayers' money will be used to actively discriminate against older, vulnerable people solely on the basis of their sexual orientation or gender identity. I think most Australians would be quite shocked if they realised that was the case.

Senator PRATT: They would be equally shocked in relation to homelessness or employment services, surely.

Prof. Hughes : Absolutely. Yes. Obviously, my background is in aged care research and service delivery but I think it is nonsensical that it only be applied in that specific environment and not considered in relation to other publicly funded services.

Senator WRIGHT: You have a social work background, and I appreciate that your main area of interest has been aged care, but you did mention younger people. I am very interested in the information we have about the mental health status of young GLBTI people. Have you done any research on that? Are you aware of any of the research in relation to that? You mentioned that, in a sense, this is a trajectory through life, where people end up in aged care. What would you say about that?

Prof. Hughes : There has been substantial research in the United States about what they refer to as 'minority stress', and that is the pressures that minorities—particularly gender and sexual minority groups—experience, not just in relation to the negotiation of their identity and the coming-out process but also how they experience discrimination and stigma. There is very clear evidence that negotiating those issues for younger people, and dealing with that across the lifespan can present really significant challenges for people, in terms of both their mental health and their physical health status. We do know that there are disparities in specific health outcomes between certain groups of people, including LGBTI people.

I think that in order to improve the quality of life of LGBTI older people that we really need to look at discrimination across the board and, as you mentioned, the whole trajectory of people as they pass through the lifespan.

CHAIR: Mr Hughes, we do not have any other questions for you. Thanks very much for your submission, though, and thanks for making yourself available today.

Prof. Hughes : No problem. Thank you, and good luck with your work.

CHAIR: We are just waiting for our next witnesses, so we will suspend our proceedings until they are here.