In the otherwise commendable Tasmanian Anti-Discrimination Act there is an odd little section which, if the Liberal Party and the Upper House get their way, will get even odder.
The section prohibits offence, humiliation and ridicule on the grounds of gender, breast feeding, pregnancy, family responsibilities, parental status and relationship status.
Other grounds like race, religion, disability and sexual orientation, where there is arguably much more offence given and taken, are not included.
That means it is illegal for you to humiliate me because I’m in a same-sex relationship, but perfectly fine for you to do it because I’m gay.
The State Government is attempting to remove such anomalies by extending the section to include all grounds in the Act.
But the Liberals don’t agree. They argue extending the section could threaten free speech, even though there’s no evidence the existing provision, in place for fourteen years, has impaired that freedom one jot, and even though the Government has proposed a range of safeguards.
On Wednesday the Upper House accepted the Liberals’ position and knocked out the Government’s proposal.
This was the day after headline coverage of an abhorrent gay-hate election flyer claiming that gay men are associated with disease, child abuse and drug abuse.
As if it wasn’t surreal enough that the Legislative Council couldn’t see the link between the flyer and the legislation before it, there was an even more surreal implication of the Liberal’s amendment that the Upper House seems to have overlooked.
The Liberal amendment protects transgender and intersex people from offence and humiliation, even as it robs gay, lesbian and bisexual people of exactly the same protection.
The Liberals’ rationale for this bizarre distinction is that transgender and intersex are grounds more closely related to the existing ground of gender.
But any school kid who gets abused for being a “poof”, “pansy”, “fairy”, “sissy”, “lezzo” or “bull-dyke” will tell you there’s no clear line between hatred based on same-sex attraction and hatred based on gender non-conformity.
They bleed into each other, sometimes literally.
So what really lies behind the Liberals’ amendment?
Do they think transgender people are less litigious than gay people? Most of the incitement-to-hatred cases taken in Tasmania have been about and by transgender people so that can’t be it.
Do they think taking on homophobic abuse is too hard because it’s more common than its transphobic equivalent? This may be the case. The fact that race, religion and disability, as well as sexual orientation, were excluded from both the original provision and the Liberal’s amendment suggests a fear of tackling those areas where prejudice is most commonly-expressed and deeply set.
Do the Liberals, or their constituents, think transgender people deserve pity because they can’t help it, while gay people are wilfull sinners? There may be some truth in this as well. Pastors and preachers don’t often offend and humiliate transgender folk from the pulpit, not nearly as often as they condemn “sodomites”.
But in Tasmania politics is not religion, at least not yet. Is the Liberals’ soft spot for transgender and intersex people about the non-religious part of the Party trying to soften the judgementalism of the theocons? Or is it just about providing the Liberal Party with cover as they go about derailing Government attempts to update the Anti-Discrimination Act?
Whatever the cause, the effect of the Liberals’ distinction is to send a clear message to hate-mongers that gay, lesbian and bisexual people are legitimate targets.
Just a cursory glance at recent government-funded research into the discrimination faced by same-sex attracted Tasmanians would show how profoundly damaging such a message will be.
But the real experience of real people doesn’t seem to figure in this debate.
This was obvious when the Legislative Council moved on to debate an exemption from the Anti-Discrimination Act for church schools.
I was criticised in the Upper House for a facebook post that associated such an exemption with increased bullying.
In the minds of some Upper House members there is no link at all.
But ask any researcher into the experience of GLBTI school students if there’s a link between watering down those students’ anti-discrimination protections and increased bullying, and you will get an emphatic “yes”.
There is a growing perception in the community that the Upper House is allowing the Liberal Party to use it as a legislative wrecking ball. It looked that way during the same-sex marriage and forest debates. It looks that way now.
If the Upper House is to reclaim its status as an independent house of review it must adopt a more transparent and robust processes for consulting and deliberating on legislation, and be allowed the resources to do so.
It must give priority to hearing from all those people its decisions affect. In the case of the Anti-discrimination Act that means listening to some of the most vulnerable people in our community, including gay couples who have endured years of homophobic harassment from their neighbours and same-sex attracted students in religious schools.
Every Legislative Councillor needs a baseline of reliable information, not just clause notes written by lawyers, but solid research about the implications of the decisions before them. Some Upper House members already gather this information themselves, often at personal expense. They set a praiseworthy example. But until every member has access to the latest and best information, the Council’s decisions will continue to appear at best capricious and at worst partisan.