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Reverse Discrimination: The Modern ‘Equality’?

AIH399 MAKING HISTORY
DEAKIN UNIVERSITY

by Bonnie Chapman

Lessons from history overflow with accounts of inequality, discrimination and intolerance toward particular (minority) groups of people. These particular groups have suffered inequity based upon preconceptions regarding sex, race, age and sexual orientation. For decades, groups such as the Women’s Liberation Movement and homosexual communities have led the charge against this discriminatory action. The efforts of such groups have led to the appearance of the Equal Opportunity Act (1995, 2010) as well as the Charter of Human Rights and Responsibilities Act. The initiation of these laws has been endorsed by persecuted groups such as those aforementioned; nonetheless, the incongruity of the situation reveals that these very groups that had formally strained for political and social equality are now applying for special considerations to be exempt from these laws. Reverse discrimination is considered a controversial term and practice, however, it exists and is developing into a legally recognised liberty for those groups who are now taking it upon themselves to actively establish differentiation and isolation rather than inclusivity and equality as humans. This precedent is in absolute contradiction to the philosophy of equal human rights. Reverse discrimination is currently proving problematic as these distinctions are in fact causing precisely what the equality movement and related legislation sought to establish in order to protect all citizens, namely discriminatory behaviour.

In recent times there has been a discernible shift in the ideals espoused by some elements of minority groups. The preliminary struggle for equal application of rights now has been replaced with isolationist models of separation. Members of minority groups, at present, are seeking exemptions from the regulations and policies they had originally fought so long and hard to establish. The Adelaide Women’s Liberation Movement’s manifesto explicitly stated that their movement was ‘not a feminist movement’. The central aim of their movement was to achieve total liberation of ‘all individuals’ and to separate from the pre-defined sexual roles that had been the only socially accepted modes of sexual category. Women supporting the movement desired uniform political and social rights to all members of society. Similarly, the Lesbian, Gay, Bisexual and Transgender Movement (LGBT) worked toward liberation from sexual oppression. The initial political goals of the LGBT were to gain the freedom to join the ‘political mainstream’ by obtaining the same political liberties enjoyed by the majority of society, namely the equal distribution of rights, benefits and protections under the law. At present, however, these groups can be seen to be abandoning this cause for equality. This is comprehended as a result of numerous applications to be excused from the exempt conduct, as delineated in the Equal Opportunity Act. The homosexual communities and women’s associations that have received exemptions from this Act have appealed to do so to ‘prevent discrimination’ against their own. Yet, whilst accomplishing this cause they also are creating reverse discrimination against those who are not affiliated with the particular group in question. In other words, then, their recent and ongoing actions have seen them practically become the persecutors of the same unequal treatment they had suffered and fought to amend.

Legislation that has been established in Victoria, Australia, as well as internationally, was enacted in order to preserve the equal application of rights and to decrease the occurrence of discrimination. In its most basic sense, discrimination is the excluding or restriction of opportunities to those of a particular group, either through affiliation, membership or categorical connection. The Equal Opportunity Act classifies direct discrimination as the ‘treatment, or proposition to treat, a person with an attribute unfavourably because of that attribute’, irrespective of whether the motive to discriminate is intent. The Act functions as a safeguard to those individuals who have been subjected to unfair treatment. The Equal Opportunity Act’s main objective is to ‘eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent’ as well as promoting the Charter of Human Rights and Responsibilities Act and promoting the ‘realisation of equality’. The Victorian Charter of Human Rights and Responsibilities ensures the protection or rights such as freedom, respect and dignity—all of which correspond with the values of equality. Legislation introduced places the utmost importance upon the equal application and implementation of rights to all citizens. Conversely, section 89 of the Equal Opportunity Act allows for a tribunal to grant exceptions to those who appeal for an exclusion of the Act. The existence of section 89 has undoubtedly allowed for groups to victimise other individuals in compliance with the law. Whereas this policy has been created to protect citizen’s rights of equality and liberty, the ability to rule against this Act is incorporated within the legislation. The Equal Opportunity Act is in need of revision. Section 89 is causing more harm to the progress of equality rather than to the uniform benefits of equal opportunity. The Act allows for contradictions of the main objectives and it is causing the same discriminatory action these groups aimed to prevent against their own.

The Victorian Civil and Administrative Tribunal (VCAT) decision to allow a number of exemptions to the Equal Opportunity Act has fundamentally set a precedent for (minority) groups to reverse discriminate and purposely disconnect themselves from the rest of society. The crisis that becomes visible to society is the detrimental effects of how this precedent will hinder the progress and advancement of human equal rights. The Peel Hotel in Collingwood, Melbourne, applied to VTAC to seek exemption from sections 42, 100 and 195 of the Equal Opportunity Act 1995. These sections included discrimination against providing goods and services, prohibition against requesting discriminatory information and offence of discriminatory advertising. VTAC allowed the Peel Hotel to be exempt from all aforementioned sections as the Peel Hotel identifies to be an exclusively male homosexual premise. The ban of heterosexual men as well as all women to the premises has sparked much debate. Many who oppose the ban maintain that the decision is a case of reverse discrimination, continuing to state that this exemption ‘exposes heterosexuals and lesbians to the same discriminatory behaviour that gay men want to stop’. Likewise, the Fernwood Gym applied to VTAC for exemption of sections 13, 42, 59, 65, 100 and 195 of the Equal Opportunity Act 1995. The application was approved. Fernwood gym is now permitted to provide its services as well as staff all its centres exclusively with women as well as the ability to advertise these matters. Both of these cases have been approved to have complete exclusivity to a certain group of individuals, on now, private premises. The Equal Opportunity Act of 1995 and revisited 2010, has allowed exceptions to the law for specific groups of people, yet, the basis of the Act is to provide equal application of rights to all individuals.

Minority groups once emphasised the similarity of all human beings and hence promoted the equal application of human rights. Currently, the same groups are embracing and promoting their difference and separation from society. These groups fought for acceptance and equality and now, even after the legislation had been introduced to enforce the equal application of rights, certain members are isolating themselves and even reverse discriminating in the action of ‘preventing discrimination’ against their own group. The precedent that has been allowed by section 89 of the Equal Opportunity Act, as well as decisions made by VCAT, has challenged the entire notion of equal rights. The initial aims of the Women’s Liberation Movement as well as the LGBT stand out against the current aims of applying for exemption of the Equal Opportunity Act, the legislation founded to enforce equal human rights as well as restricting discrimination against particular groups of people. The policy that was implemented to develop equal opportunities and to impede discrimination is the same legislation that is allowing for groups to reverse discriminate, ‘legally’.

Selected further reading:

VTAC decision on the Peel Hotel:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2010/2005.html?stem=0&synonyms=0&query=the%20peel

Equal Opportunity Act 1995:
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt2.nsf/DDE300B846EED9C7CA257616000A3571/B3E2DA74DD7EA4FBCA257761001F697C/$FILE/95-42a055.pdf

VTAC Fernwood decision:
http://www.austlii.edu.au/cgi bin/sinodisp/au/cases/vic/VCAT/2005/246.html?stem=0&synonyms=0&query=fernwood

Charter of Human Rights and Responsibilities Act 2006:
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/54D73763EF9DCA36CA2571B6002428B0/$FILE/06-043a.pdf

Equal Opportunity Amendment (Governance) Act 2009:
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/F2CA698A6175CC11CA2575910011CBDA/$FILE/09-014a.pdf

Equal Opportunity Act 2010:
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/7CAFB78A7EE91429CA25771200123812/$FILE/10-016a.pdf

© APH Network and contributors 2011. All rights reserved.

Citation: Bonnie Chapman, Reverse Discrimination: The Modern ‘Equality’?
Australian Policy and History. October 2011.

Permanent link to this article: http://aph.org.au/reverse-discrimination-the-modern-%e2%80%98equality%e2%80%99