By Tom Flanagan
SYDNEY — Two thousand lesbians, gay men and their supporters rallied outside the NSW parliament on September 14 in protest against the move by the Coalition state government to abandon proposed anti-vilification legislation relating to homosexuals.
Two days later, the parliament's upper house voted to bring on debate on independent MP Clover Moore's Anti-Discrimination (Homosexual Vilification) Amendment Bill.
Moore's bill was defeated in the upper house in May by the combined forces of the government and the Call to Australia Party. It returned to the agenda as a result of Liberal MLC Ted Pickering crossing the floor to vote with the Labor opposition and the Democrats.
Debate on the bill will take precedence at the next sitting, beginning on October 12.
This break allows more time for an analysis of the implications of anti-vilification legislation in general, and for a look at how this parliamentary stand-off is likely to be resolved.
It is undeniable that the vilification of lesbians and gay men is widespread. Furthermore, violence against lesbians and gay men is a serious problem in this society.
The legislative strategy to overcome vilification is, however, dubious on two counts: first, because it presumes a causal relationship between public acts of vilification and the violence that it seeks to overcome; second, because it presumes that the impact of this legislation (and other forms of censorship for which it strengthens the precedent) will be of net benefit to the lesbian and gay community.
The assumption that vilification is the cause of violence ignores the fact that homophobic attitudes are not accidental, but part of the fabric of this society. Such prejudices are a means to bolster the patriarchal family, and thereby the oppression of women.
Putting a lid on the public expression of the most extreme forms of homophobia does not eradicate ingrained attitudes; it merely sweeps them under the carpet. It provides only the illusion of addressing the problem.
The beginning of a serious response to anti-homosexual vilification and violence would involve an education program aimed at affirming lesbian and gay identities. Anti-vilification legislation does nothing to counteract the immense pressure of mainstream culture that incessantly and implicitly affirms the heterosexual norm. It is this affirmation of the heterosexual norm, often by counterposing it to the homosexual alternative, that underpins notions that homosexuality is wrong and that anti-lesbian and anti-gay violence is therefore okay.
Some argue that the mere existence of a law against the most serious forms of anti-homosexual vilification may have some impact on the general consciousness. But this is questionable given that bashing and incitement to violence are already covered by criminal law.
Anti-vilification legislation provides homophobes with the opportunity to pose as defenders of the right to free speech. Free speech is often counterposed to the supposed interest of the lesbian and gay community in anti-vilification legislation.
In fact, anti-vilification laws will increase the powers of the state to regulate what we and others say, and not necessarily in the way we might intend. Racial vilification laws have been used in various countries to curb the freedom of speech of the minority groups one might have expected they were intended to defend.
Indeed, this concern has been taken into account to some degree in the drafting of Moore's bill, in that it specifies "anti-homosexual vilification" rather than "vilification on the basis of sexual preference". But the concern remains that specific anti-vilification laws strengthen the precedent for generalised laws. And such laws, like censorship laws, are most likely to be exercised in the interests of the conservative establishment.
In the context of the current situation in NSW, it becomes clear that we are not dealing with abstract concerns.
The Fahey government relies on the support of the ultraconservative Call to Australia MPs Fred and Elaine Nile. Fred Nile caused the government to abandon its own version of anti-vilification legislation by threatening to withdraw support for government bills. It is unlikely that we have seen the last of the wheeling and dealing between the government and the Niles on this issue.
Speaking on ABC radio on September 17, Pickering stated that Moore's bill could be amended so that everyone could achieve their aims! This seems to indicate a "compromise solution" of a general anti-vilification bill, rather than one dealing specifically with anti-homosexual vilification.
That possible scenario highlights the immediacy of the concerns outlined above.
The prospect of extending the government's powers in this regard should sound the alarm on the dangers of the power to censor being held by those with a vested interest in the status quo. Lesbians and gay men have struggled long and hard against censorship in order to assert and affirm our identities, to overcome an imposed invisibility, to produce our own information media, to openly discuss issues of importance to our community and to publicly confront oppression and bigotry.
Anti-vilification laws are a double-edged sword, and governments wielding this sword are more inclined to use it against us when we challenge the homophobic, heterosexist status quo, than against those who seek to maintain it.
This government, while taking up anti-vilification legislation, has failed to implement recommendations of the Anti-Discrimination Board calling for the repeal of exemptions from the Anti-Discrimination Act that apply to small employers and private educational institutions, and for the extension of the act to cover transsexuals. The Fahey government has also ignored the Puplick Committee Report, which questioned the usefulness of education on homophobia being optional for schools. Can we really believe that this government is serious about tackling institutionalised homophobia?
While some MPs (and other commentators) clearly are well intentioned in their support for anti-vilification legislation, they are also naive as to the dangers. Their energies would be better spent strengthening the Anti-Discrimination Act and taking action in the area of education.
Our energies are best spent in actively mobilising in support of our demands. It's important that we don't leave it to parliamentarians to do our thinking for us. All they're likely to offer is a "leave it to me" legislative strategy.
While legislation has a role, we also need to build our confidence and strength as a community. Here public mobilisations in support of our demands have a key role to play in our political and social empowerment.