LGBTQIA+ SAFE SPACE RIGHTS

BY BETHANY KELLY

Introduction

Recognising relevant social debate within international discourse today is simple. Looking at our politically charged ally, the US’ continual hyperbolic promotion of individual rights and freedoms is felt across the world. However, this political contention reached me, not through Donald Trump or Candace Owen’s Twitter handles, but at my hospitality job

During a routine bathroom check, our security and licensee approached me as I was leaving the female bathroom with a male patron. The patron was my friend who identifies as sexually and gender diverse (‘SGD’), but the policy was plain: you can’t use the female bathrooms if you are male.

The discussion of a more inclusive community for SGD persons has been subjected to gross dissection by contemporary politics, leaving SGD individuals like my friend feeling vulnerable, unwelcome and without safe spaces. This essay evaluates existing legislation that aims to create and protect safe spaces for SGD persons. Further, I shall identify whether these safeguards effectively enhance society or if other communities are disadvantaged.

Legislation

Gender discrimination laws have been championed in Australia since the passing of the Sex Discrimination Act 1984 (‘SDA’), making it illegal to discriminate against individuals on ‘the grounds of sex.’1 In 2013, the Federal Government passed amendments to broaden the scope of gender discrimination, defining sex discrimination to include sexual orientation, gender, and intersex status.2 Specifically, s 5B highlights that a person experiences discrimination if they are treated ‘less favourably’ than another because of their gender identity or characteristics of their appearance that associate with a specific gender identity.3 In other words, an SDG person experiences discrimination when their identifying gender is questioned or diminished in a gendersegregated bathroom. This is monumental for queer justice in Australia’s legal system as it enshrines within the legal definition of ‘gender’ respect for its social factors rather than biological. These reforms responded to emerging case law that reconsidered the definition of gender, such as the case of Norrie, which held that gender is a ‘non-binary term.’4

The SDA also prevents policies being imposed on safe spaces for SDG Australians. Distinctly, s 5B(2) identifies discrimination when a ‘condition, requirement or practice’ is imposed to directly disadvantage individuals on the

¹ Sex Discrimination Act 1984 (Cth), s 5. ² Attorney-General’s Department, Australian Government Guidelines on the Recognition of Sex and Gender (1st July 2013).

³ Sex Discrimination Act 1984 (Cth), s 5B (1)-(3).

4 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145.

5 Education Act 2004 (ACT); Education Act 1990 No 8 (NSW), s 4-6; Education Act 2015 (NT); Education (General Provisions) Act 2006 (Qld); Education and Children’s Services basis of gender. This section benefits SDG individuals by embedding an implied right to protection against policies that restrict their integrity and freedom, such as use of facilities. It also encourages amendments to existing legislation influenced by institutional discrimination - such as access to medical treatment and disclosure of identity in government documents. This also extends to all-gendered bathroom access and policies. While case law and further legislation remains limited in this respect, agency policies have come into effect to protect SGD individuals. State and Territory policies have been issued by each state’s Department of Education, with power conferred from their relevant Education Acts,5 confirming that students may use school bathrooms and changing rooms that align with their gender identification. Other agencies, including government universities such as the University of Technology of Sydney (‘UTS’) passed a university policy implementing all-gendered bathrooms in 10 of its campus buildings. These bathrooms are still active and accessible today. Schools, alongside other agencies, are also prohibited from disclosing a student’s gender, pursuant to the Privacy and Personal Information Protection Act 1998 (Cth).6 This consequently limits the discussion and denial of a student’s identifying gender when using agency services and facilities.7

Act 2019 (SA); Education Act 2016 (Tas); Education and Training Reform Act 2006 (Vic); School Education Act 1999 (WA).

6 Privacy and Personal Information Protection Act 1998 (Cth), s 62(1); Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483.

7 Mark Bryan, ‘A School’s Legal Obligations With Respect to Transgender Students’, School Governance by Complispace (online, 21st September 2022),

Criticisms

Many criticisms and concerns of these laws have surfaced, such as the inability of current government policies and laws to promote the comfort and safety of SGD people. The Washington Post recorded that Australia’s SGD youth still feel unsafe using gendered bathrooms in 2019. Erik Ly, a Victorian transgender male, described the experience as ‘a really strong direct message … that the wider community is pretty much against [us].’

Further, the SDA’s legal enforceability is limited. Discrimination law is handled within private law, forcing SGD individuals who experience discrimination to lodge a complaint and to approach the matter through civil procedure. This can cause further distress for SGD individuals, as well burden victims financially and socially. The LGBTIQ Legal Service analysed the severe disadvantages faced by SGD communities when accessing legal support. The service found that in 2020, only 23.68% of discrimination victims sought legal aid due to a lack of resources to adequately support victims and facilitate a safe and welcoming process in seeking compensation.8

All-gendered bathroom implementation is also institutionally restricted under building regulation laws. The National Construction Codes outline the quantity of gendered and disabled bathrooms in Australian buildings by considering factors such as size, number of users and the building’s specific use. This policy does not consider multi-stalled allgendered bathrooms for most buildings, resulting in many institutions being unable to implement a safe space for SGD people.9

Another large point of contention concerning all-gendered bathrooms is the safety and privacy of women. Hanover Welfare Services Ltd highlighted the issue of domestic violence survivors being triggered by transwoman utilising female facilities naked.10 This case influenced Victorian legislation to exempt discrimination against transgender women for the purposes of providing shelter, introducing the question of how governments will balance the rights to safe, accessible spaces for different vulnerable groups. This extends to Australia’s disabled community. Many handicapped bathrooms are being made less exclusive for disabled Australians for the benefits of SGD persons. UTS is an example of this, as conservatives argued that converting disabled bathrooms for the benefit of a ‘tiny subset of society’ affected the 1 in 5 Australians that live with a disability who already struggle to locate convenient bathrooms.11

Conclusion

The Australian community is taking steps to create safe and inclusive spaces for SGD members, both through legislation and independent policies. While the effectiveness of these steps is mixed, Australia’s increased legal awareness of SGD rights suggests a future that promotes inclusivity and acceptance for vulnerable Australians. However, pertinent questions still exist regarding how the government will balance these freedoms with the rights of other disadvantaged social groups.