Embracing identities, intimacies and intersections in LGBTIQcommunities
By Senthorun Raj
Protecting and promoting human rights remains a political, legal and cultural challenge for all of us. While no single reform can claim to be the prefect panacea, if I were the Commonwealth Attorney General, my primary focus would be negotiating social justice policy mechanisms thatrecognise the dignity and diversity in our communities.Focusing on lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities inparticular, this task would begin with the inclusion of disparate identities in the development of comprehensive anti-discrimination protection and family recognition.My departure point for reform is articles 2 and 7 of the Universal Declaration of Human Rights,which guarantees freedom from discrimination and equality before the law. In Australia, theabsence of comprehensive federal anti-discrimination law in relation to sexual orientation, gender identity or intersex must be immediately rectified.In drafting anti-discrimination legislation, as legal academic Kimberle Crenshaw notes, identitiesand experiences must not be confined in discrete or singular terms. We only need to reflect on acase before the Australian Human Rights Commission on the difficulties gender diverse eldersface in accessing aged care to see this: An older transgender woman with dementia, who had lived most of her life as awoman but had never had sex reassignment surgery, was forced by staff of thereligious aged care facility where she was being cared for, to live as a man.Unfortunately, this kind of insensitivity is not unique. It is underscored by a history of invisibility,isolation and ignorance in relation to intersections of her dementia (mental health), a failure toacknowledge her identification as a woman (gender identity), and her inability to accessappropriate residential aged care (age).The Productivity Commission’s report
Caring for older Australians
(2011) elaborates that sexualand gender minorities often feel coerced into remaining silent about their relationship status or gender identity for fear of harassment or vilification in residential aged care.In order to extend the reach of anti-discrimination law outside public authorities the broad relianceon exemptions and exceptions also needs to be narrowed.Due to the complex nature of modern government, social services historically provided for bygovernment agencies are often contracted to non-government organisations, which are oftenreligious. Faith based exemptions, such as section 56 of the
Anti-Discrimination Act 1977
(NSW),automatically give religious organisations discretion to deny services to sexual and gender minorities including in education, foster care and aged care services. Aside from limiting socialservices to sex, sexuality and gender diverse people, unfettered discretion produces uncertaintyin the law.