The Right Strikes Back

Two years ago, Australia held a noncompulsory postal plebiscite — essentially a survey — on marriage equality. Though widely criticized by LGBT advocacy and activist groups, as well as by the broader left for giving homophobes a public space in which to air their views, the plebiscite resulted in a resounding victory for marriage equality. Almost 80 percent of the electorate posted their vote, with 61.6 percent in favor of marriage equality. In the face of this overwhelming pressure, the Liberal government legislated to allow same-sex marriage.

Australia has not always supported same-sex marriage. In 2004, when the Marriage Act was modified under John Howard to define marriage as exclusively a heterosexual union, only 38 percent of Australians supported marriage equality. Since 2010, this has been changing, and a large-scale and enduring campaign led by radicals, activists, and LGBT advocacy groups like Equal Love has been working to shift public opinion.

This victory for civil liberties, however, which mirrored wins around the world, was not taken lightly by conservatives and the religious right. Having lost the battle on marriage equality, the government opened a new front and launched an inquiry into religious freedom.

Although the Religious Freedom Review took twice as long as expected to complete its work, and although it was led by conservative, Howard-era minister Phillip Ruddock, the inquiry found no pressing threat to religious freedom, ultimately recommending against the introduction of separate legislation to protect religious freedom. Not to be discouraged, Morrison pressed ahead anyway.

Meanwhile, a new battleground of the country’s cultural wars opened when the celebrity Christian rugby player Israel Folau tweeted a low-resolution image that screamed in Comic Sans: “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators HELL AWAITS YOU. REPENT! ONLY JESUS SAVES.” His tweet was in response to news that Tasmania had passed legislation making it optional to list one’s gender on birth certificates — a small but important victory for trans and nonbinary people.

Folau’s tweet was in clear violation of Rugby Australia’s Code of Conduct, which mandates against discrimination. As a result, he was sacked, losing a $4 million contract in the process. Folau dug his heels in and responded with a GoFundMe campaign to support his legal defense that raised over $1 million, a move that coincided with a far-right-led campaign in defense of “religious freedom.”

The Morrison government explicitly acknowledges this case as part of the inspiration for their proposed laws; a whole section of the draft legislation is referred to as the “Folau Clause,” and explicitly forbids employers from setting codes of conduct that may discriminate indirectly, on religious grounds. In Morrison’s bill, homophobic speech like Folau’s will be protected under the auspices of religious freedom.

Giving lie to the idea that these measures have anything to do with religious freedom, Australia’s peak Jewish body and leading figures in the Anglican Church have voiced their opposition. Rather, as the Liberal Party Senator Eric Abetz has freely admitted, these laws were promised to people who voted “no” in the same-sex marriage plebiscite, as compensation for their loss and as protection for their homophobia.

Turning Back the Clock

Morrison’s bill has a whole host of worrying consequences for LGBT people in Australia. Key among them is the fear that health workers will be able to cite conscientious objection to avoid treating LGBT people.

Exemptions to antidiscrimination acts already exist where birth control and assisted dying are concerned. Health care professionals have a right to opt out of delivering these services, so long as they recommend another health care professional who may be able to provide the same role.

If Morrison’s bills pass, any health care professional will be granted the ability to refuse care — be it counseling, prescribing medication, or surgery — to LGBT people, so long as they can mount a case that their denial of service stems from religious belief.

In practice, this means that trans people will be at risk of being denied hormones, access to medical advice about transitioning, and gender reassignment surgery. Those with HIV may be refused treatment; pharmacists could refuse to fulfill their prescriptions. Even without full denial of service, these measures will likely exacerbate mental health issues among LGBT people while fostering greater reluctance to engage with the health care system.

For LGBT people living in isolated parts of the country, the consequence may well be disastrous. Indeed, it’s not just the LGBT community who are at risk: it will likely become more difficult to access contraception and abortion services overall. The new legislative protections will also cover doctors and pharmacists who wish to deny service on a religious, antichoice basis.

The legislation promises to harm LBGT rights in other fields. For example, the laws will further erode protections against being sacked, expelled, or discriminated against in religious schools. Bans on same-sex couples at school dances may be permitted; heteronormative school uniform restrictions may be upheld.

Given the extraordinary conservative campaign against the queer-friendly, anti-bullying program, Safe Schools, there is every reason to suspect that Morrison wishes to grant protections to homophobic teachers and parents, putting LGBT students at risk.

Another section of the proposed laws protects religious charities that refuse to provide service to people based on their gender, sexuality, or disabilities.

The laws also promise to enshrine the right of all businesses to refuse service on religious grounds. Homophobic bakers may find themselves joined by homophobic publicans or restauranteurs. Jim Crow–style signage may be permitted, announcing businesses that discriminate against LGBT people.

Further, Scott Morrison has promised to create the position of freedom of religion commissioner, attached to the Australian Human Rights Commission. Presently, no other freedom is defended by its own special commissioner. Other commissioners tasked with opposing discrimination are appointed to oppose specific forms of discrimination, such as gendered or racial discrimination.

These measures mirror those proposed in the United States, where the Right has sought to wind back victories won against discrimination and oppression. The parallel legislation in the United States is known as the Religious Freedom Restoration Act.

Sadly, the center-left has, in some cases, conceded too much ground. New Zealand’s prime minister, Jacinda Ardern, has recently delayed passing a ban on gay and trans conversion practices. These pseudo-scientific programs seek to reprogram their subjects’ sexual or gender orientation and are often described by survivors as a form of “psychological torture.” Ardern justified the delay in banning them on the grounds that “rights relating to freedom of expression and religion” be maintained. In Australia, concerns have been raised that Morrison’s laws may roll back a ban on conversion “therapy” that already exists in the state of Victoria.

Indeed, the unpredictability of the consequences of the proposed laws is a part of the problem. The likely result will be a slew of high-profile court cases, as homophobes line up to defend their legislative right to bigotry. This will allow the hard right to present themselves — yet again — as victims of censorship and oppression. Worse, what constitutes a religious belief, as opposed to garden-variety bigotry, is next to impossible to establish. It is quite possible that these laws will open a back door to legal protection for the far right, provided they cross themselves while entering.

As threatening as Morrison’s laws are, at least the LGBT community can take hope in one thing: our victory has been so complete that the only strategy open to conservatives is to present themselves as victims. As dangerous as these laws may be, they are a sad rearguard action against overwhelming support for LGBT rights.