Equality Australia, rainbow family allege unlawful discrimination by former Minister, ABS in 2021 Census

16 September 2022 – National LGBTIQ+ group Equality Australia and April Long (they/them), have today lodged a formal complaint to the Australian Human Rights Commission alleging that the Assistant Treasurer (at the time, a position held by Minister Michael Sukkar) and the ABS unlawfully discriminated against April, their family and other LGBTIQ+ people by failing to properly count LGBTIQ+ people in the 2021 Census. 

“On Census night, my partner Kelly and were really excited – we had a special dinner and really made a big deal of it”, said April Long, co-complainant and Mumma to Kaison.

“Our son Kaison was 8 months old, so we weren’t just doing the Census for us, but for him. We wanted our new little family to be counted”.

But the experience for April and their family quickly turned from excitement to disappointment, as the Census instead excluded April’s role as a parent and made assumptions about their gender.

“As we were filling out the form, it kept going from bad to worse. Kaison has two Mums – I’m Mumma and Kelly is Mummy – but the form asked where Kaison’s mother and father were born. Our family wasn’t included at all – I felt excluded, and it made Kaison’s family invisible”, said April Long.

“Our initial reaction was shock. We were unable to complete it accurately. It didn’t capture us, it made us feel invisible and it didn’t count us.”

Equality Australia, which is joining April as a co-complainant, said April’s experience was just one of thousands of experiences of discrimination felt by LGBTIQ+ people and their families across the country on Census night.

“Our national census should count every one of us properly. Every person and every family in Australia should be treated with the dignity and respect of being recognised for who they are, as individuals, and as families”, said Equality Australia’s Legal Director, Ghassan Kassisieh.

“The 2021 Census could have provided crucial information about LGBTIQ+ people to inform the response of governments and non-government organisations to better address our communities’ needs, particularly in health and social services. Instead, it failed to ask the right questions to properly count LGBTIQ+ people.”

Criticisms levelled at the 2021 Census include that:

  • Without a separate question about sexual orientation, the Census did not capture data about all people who were gay, lesbian or bi+;
  • The question on sex in the Census did not make sense to gender diverse people and rendered women and men who are trans invisible; and
  • Without a separate question about variations in sex characteristics, people born with hormonal, chromosomal or anatomical sex characteristics that do not fit the norms for male or female bodies (intersex people) were also rendered invisible.

“The fact is we still don’t know how many LGBTIQ+ families there are in Australia, nor where they are located”, said Mr Kassisieh.

“Thousands of rainbow families like April’s were asked insensitive and offensive questions that assumed they were in a heterosexual relationship, and many LGBTIQ+ people were simply ignored by the failure to ask appropriate questions about us and our lives at all.”

The complaint to the Australian Human Rights Commission alleges several breaches of the Sex Discrimination Act 1984 (Cth) by former Minister Sukkar and the ABS because of the failure to ask appropriate questions on sexual orientation, gender identity and variations in sex characteristics, and the manner in which Census 2021 was conducted.

“I hope that by pursuing this complaint, we can ensure the new government properly counts LGBTIQ+ people in the next census and ensures other rainbow families like ours are recognised equally,” said Long.

The complaint alleges that Minister Sukkar (acting at the time in the position of Assistant Treasurer) and the ABS engaged in deliberate conduct that breached federal anti-discrimination laws, despite knowing there was extensive support for the inclusion of these topics from within the government, state and territory counterparts and the Commonwealth Departments of Health and Social Services. The complaint alleges that this conduct meant that the ABS could not follow its own guidance on the collection of data on sexual orientation, gender identity and sex characteristics.

“Requiring LGBTIQ+ people to complete a mandatory census that was ill-fitting at best or rendered them invisible at worst was offensive and harmful. But it was also bad public policy.”

“Ultimately, this was an act of discrimination by our government against us, and it must be addressed,” said Long.

“Kaison starts school in 2026 and I can’t tell him how many kids there are just like him.”

The complaint will now progress to the Australian Human Rights Commission for consideration of whether it can be privately conciliated between the co-complaints, the ABS and the Minister who now holds the portfolio previously held by Minister Sukkar.

“We hope that this complaint will help build the case for the newly elected Albanese government and the ABS to right the wrongs of the past and to ensure that LGBTIQ+ people in Australia are properly counted in the next Census,” said Mr Kassisieh.

Media Contact: Tara Ravens. 0408 898 154, tara.ravens@equalityaustralia.org.au