Combating Lesbian and Gay Youth Suicide and HIV/AIDS Transmission Rates: An Examination of Possible Education Strategies in Western Australian High Schools in Light of Prevailing State Statutes

Authors:	Christopher N Kendall BA (Hons), LLB, LLM, PhD Associate Professor, Murdoch University School of Law
	Sonia Walker BA (Hons) LLB (Murdoch) M Phil (W Aust) Lecturer, Murdoch University School of Law
Subjects:	HIV infections Australia prevention Homosexuality law and legislation - Western Australia (Other articles) Suicide Australia prevention
Issue:	Volume 5, Number 4 (December 1998)
Category:	Refereed Articles

Contents

• Introduction
• Youth Suicide And HIV/AIDS Education
• Youth Suicide
• HIV/AIDS Education in Secondary Schools
• The Likelihood Of Implementing Recommendations For Hiv/Aids Education And Suicide Prevention In Light Of Prevailing Statutes
• The Law Reform (Decriminalisation of Sodomy) Act (Western Australia)
• The Censorship Act (WA) 1995
• Conclusion
• Notes

Introduction

"There is one difference that sets sexual minorities apart from other minorities -- that is that we can be invisible, and are assumed to be part of the heterosexual majority until we blatantly and publicly declare otherwise. Some of you might think this to be a boon -- I can just pretend to be straight and avoid all this discomfort. I tried that for a while, going so far as to use a guy to try to prove to myself that I could be straight if only I tried hard enough. But instead of being accepted into the mainstream, I lost my self-respect.... This initiated a downward spiral of self-hatred and anger motivated by homophobia. I hated myself for being what seemed to be everyone's worst nightmare, a homosexual. I was angry because no matter what I did, I couldn't change that.... For me, my silence equalled the death of my sanity. I'm not telling you this to make you feel sorry for me, the poor disillusioned lesbian, or to preach to you, but because I want to give you an idea of what it is to be ostracised from society because I don't conform to its standard of 'normal.'" Lee Fearnside, aged 16[1]

1. Research concerned with the problems facing lesbian and gay youth indicates two re-occurring elements that require immediate attention on the part of educators and social activists. The first is an alarming suicide rate amongst lesbian and gay adolescents.[2] The second is what has been referred to as a "second wave" of HIV/AIDS transmission amongst young gay men between the ages of 14 and 19.[3]

 
2. This essay will examine the ability of High School educators in Western Australia to effectively deal with these issues in light of two prevailing West Australian statutes. Specifically, we will critique the Law Reform (Decriminalisation of Sodomy) Act, which makes it a criminal offence to "promote homosexual behaviour" (and which ultimately resulted in discriminatory age of consent provisions being added to the state's criminal Code), and the Censorship Act, which makes it a criminal offence to distribute any sexually explicit materials which might be deemed "offensive" to the "average citizen" or "reasonable adult." It is submitted that legislation of this sort impedes the ability of educators to effectively address these issues.
   
   

Youth Suicide And HIV/AIDS Education

Youth Suicide
 

3. Gay youth councillor Kevin Jennings explains that in a society in which homophobic violence and gender inequality remains rampant, being a gay or lesbian youth is, suffice it to say, less than easy. What makes gay and lesbian youth different from other traditional "minority" groups is that they do not, for the most part, grow up with people like themselves.[4] Their isolation becomes more encompassing, for a homophobic social environment can be duplicated in the home. As Jennings writes, lesbian and gay youth are predominantly the product of heterosexual families, and come from communities where lesbian and gay adults are rarely visible. They also attend schools with no openly gay staff, and belong to peer groups where "fag" is the favoured insult and "that's so gay" is a common term of abuse.[5]

 
4. According to Professor James Sears of the University of South Carolina, the average student realises his or her sexual orientation at the age of thirteen.[6] For a heterosexual adolescent, there are many avenues of support through which they can overcome, or at least discuss, developmental or peer pressure difficulties that inevitably accompany adolescence. By contrast, gay students rarely feel able to ask their families, friends, schools, or communities to help them out, fearing the possible negative response they might receive.[7] This is supported by research conducted by the "London Gay Teenage Group," who found that 25% of young gay and lesbians felt isolated, 21% suffered verbal abuse, 12% were physically assaulted and one in five young gay men and lesbians attempted suicide because of anguish, loneliness and despair.[8] Isolation thus becomes intrinsic to the existence of a large number of lesbian and gay adolescents, and this feeling of isolation is often accompanied by self-loathing and confusion as to their future.[9]

 
5. The WA Health Department recently released a Report aimed at reducing the increase in youth suicide in WA entitled Making A Difference: Youth Suicide Prevention Manual.[10] With respect to gay and lesbian youth, its findings indicate the following:
   
   
• Young gay, lesbian and bisexual people often live in hostile and condemning environments. This is reflected in our legal system. For example, whilst homosexuality is decriminalised in all Australian states, subject to discrepancies regarding age of consent, only New South Wales has legislation to prevent the vilification of gay men and lesbians.[11] Further, Western Australia has yet to include sexual orientation within the scope of its Anti-Discrimination Act, which is at odds with other states.[12] In school settings they may feel unable to escape from or defend themselves against verbal and physical assaults -abuse which is evident and indeed rampant.[13]
• There is a lack of positive role models and information about homosexuality. The existence of gay, lesbian and bisexual young people is often denied, ignored or treated with contempt by society, especially the media, and the education system so that there is little opportunity for them to recognise, take pride and act on their sexual identity. This can seriously affect the self-esteem of young people, leaving them isolated and vulnerable. They may react by maintaining a secret life away from family and friends, by internalising self-hatred or denying their sexuality.
• Young people may be ambivalent about sexual identity. Youth is a period of experimentation when roles and identities are being questioned in relation to a range of issues. Whilst there is great pressure to have heterosexual relationships in adolescence, many young people experience homosexual feelings. This can cause turmoil for young people who may try to force themselves to have heterosexual relationships and become confused about why this doesn't feel "right" to them. Their level of heterosexual activity may be increased, or their homosexual activity may take place anonymously (such as at "beats") or gay and lesbian bars and nightclubs. Being forced into the adult 'scene' like this can increase a young person's sense of isolation, and also exposes them to the risks of access to alcohol and other drugs, and the chance to engage in opportunistic sex work.[14]
  
  
6. Research undertaken in the United States exposes similar difficulties and dangers faced by lesbian and gay youth in that country:
   
   
• Violence. According to the US Department of Justice, "Homosexuals are probably the most frequent victims" of hate crimes, which are crimes directed against people because they belong to a certain group (racial, ethnic, etc). Lesbian and gay youth are hardly immune to this society-wide phenomenon. A survey by the National Gay and Lesbian Task Force found that 45 percent of gay men and 25 percent of lesbians reported being harassed or attacked in high school because they were perceived to be lesbian or gay.
• Verbal Abuse. It comes as no surprise to any teenager that gay and lesbian students are often subjected to verbal abuse. Comments like "fag", "dyke", and "that's so gay" are used so regularly in high schools (often even by teachers) that few even notice such hateful language as being anything out of the ordinary. According to a survey conducted by the Massachusetts Governor's Commission on Gay and Lesbian Youth, 97 percent of students at one suburban high school had heard homophobic language used in school. Another Commission survey found that 43 percent of students said they heard such language "often", 51 percent "sometimes", and only 6 percent said "never". Finally, 53 percent of the students surveyed said they had heard teachers use such language. Few teachers sympathetic to gay youth feel able to intervene to stop such harassment for, as one teacher put it, "Most teachers, gay or straight, are afraid to speak up when they hear homophobic remarks. They're afraid people might say, 'What are you, gay?', which remains a frightening question in today's climate."
• Homelessness. Many families react badly when they find out one of their children is lesbian or gay. A University of Minnesota study found that 26 percent of young gay men reported being forced to leave home because of conflict over their being gay.
• Substance Abuse. Under such stress, many gay and lesbian youth turn to alcohol or other drugs to escape from their problems. The University of Minnesota study found that 58 percent of the young gay men surveyed could be classified as having a substance abuse disorder.
• High Drop-Out Rates. The United States Department of Health and Human Services found that 28 percent of gay youth drop out of high school altogether, usually to escape the harassment, violence, and alienation they face at school.[15]

 
7. All of the above create an environment where suicide is considered a tangible option by far too many young lesbians and gay men. As Jennings notes, according to the United States Department of Health and Human Services, gay and lesbian youth are two or three times more likely to attempt suicide than heterosexual youth (with 500,000 suicide attempts in the United States annually).[16] Up to 30 percent of successful teen suicides each year are by lesbian or gay teens (1500 out of a total of 5000 deaths). Using the Department's statistics, this means that a gay or lesbian youth tries to kill him or herself every thirty-five minutes in the United States, and that a gay or lesbian youth succeeds in killing him or herself every six hours.[17]

 
8. As noted, in light of this disturbing reality, the Health Department of Western Australia has recently released a campaign strategy aimed at assisting educators responsible for educating and counselling gay youth in West Australian High Schools.[18] The thrust of this Report is a recognition that being sensitive to and knowledgeable about some of the issues and problems these young people face will greatly improve the level and type of support educators are able to offer them. Its recommendations for educators, summarised in a resource manual distributed to all West Australian schools, are as follows:
   
   
• Be aware of the issues, and equip yourself with current, accurate information about the particular needs of gay, lesbian and bisexual service users and where they can go for help. Create a resource list of relevant community groups.
• Acknowledge the reality of homophobia (which is fear of and prejudice against homosexual men and women). Be prepared to confront your own attitudes as well as those of others. This is especially important in schools, refuges and youth agencies where we need to provide positive examples of sensitivity to, and acceptance of, difference.
• Challenge all anti-homosexual language and behaviour.
• Ensure that policies and procedure in your agency reflect a commitment to non-discrimination of gays, lesbians and bisexuals. Make sure this is included in all published service documents.
• Include relevant material for young lesbians, gays and bisexuals in all service programs.
• Display pamphlets, books and posters on gay, lesbian and bisexual issues.
  
  
9. Finally, the Manual notes that, when working directly with young lesbian, gay and bisexual people who may be at risk of suicide or injury, educators should consider the following:
   
   
• Wherever possible, encourage the use of gay, lesbian and bisexual counselling services and support groups if this is what the young person wants.
• Create a safe, accepting environment in which the young person can discuss issues of sexuality. Sometimes it is important to let the person know that you are comfortable talking about these issues by asking open, direct questions.
  
  
10. Recommendations such as these are aimed at assisting lesbian and gay youth feel more accepted by the community in which they live -- an objective which, if successful, may ultimately have the concurrent effect of reducing the sense of isolation so often felt by those youth so clearly at risk of self inflicted injury.
    
    

HIV/AIDS Education in Secondary Schools
 
11. The WA Health Education Report also notes that the issue of HIV/AIDS education is of the upmost importance for all young people and recommends implementing education programs that reflect the need for safe sexual behaviour as well as those which focus on sexual identification. This is of crucial and urgent given recent North American statistics which indicate an alarming increase in HIV/AIDS transmission amongst gay male adolescents between the ages of 14 and 19.[19]

 
12. Reasons for the increase in HIV transmission rates amongst young gay men are unclear, although many in the gay community believe it reflects a failure on the part of both society at large and the gay community itself to offer the type of support needed to develop the level of self confidence and self respect required for safe sexual practices to be a viable option.[20] It has been argued, for example, that if we do not offer young gay men positive role models and instil in them a sense of self-worth that merits preservation, we do little to encourage them to protect themselves, for we merely reinforce the belief that they are socially devalued, hence not worthy of the protection offered by safe sexual practices. Similarly, we need to ensure that safe-sex education programs deal with the realities of same-sex sexual activity such that young gay men are made aware of what is and what is not safe sexual activity. This requires an at times blunt and explicit description of what gay sex is and how best to ensure that any sexual activity engaged in is in fact safe. Given that high schools throughout Australia have adopted sex education curriculums, the responsibility to do so should and must rest upon those charged with developing and implementing these programs. Not only will this assist in saving lives, it will indicate to gay youth, and students in general, that homosexuality is not a taboo subject best not discussed, that homosexuals are not socially deviant (hence worthy of abuse and ridicule) and that heterosexuality is not the only sexual orientation worthy of respect, support and quite basic human rights protections.
    
    

The Likelihood Of Implementing Recommendations For Hiv/Aids Education And Suicide Prevention In Light Of Prevailing Statutes
 
13. Despite the need for same sex safe education campaigns, and a general need for homosexuality to be addressed within the school structure in order to combat the stark reality of gay youth suicide, it is clear that within Western Australia many obstacles prevent the implementation of programs aimed at improving what is clearly a quite desperate situation. Whilst the recommendations outlined thus far in this paper must be addressed, the question arises whether or not they can be. This is particularly relevant in light of two West Australian statutes which seem to at least imply that some of these recommendations are either illegal or legally questionable. It is our contention that, at a minimum, these statutes, even if not actively enforced by the state, may dissuade educators from taking the types of steps necessary to tackle youth suicide and HIV/AIDS transmission.
    
    

The Law Reform (Decriminalisation of Sodomy) Act (Western Australia)
 
14. In 1989, the WA Government introduced the Criminal Code Amendment (Decriminalization of Homosexuality) Bill into the Legislative Council. The Bill was ultimately passed as the Law Reform (Decriminalization of Sodomy) Act and resulted in a number of amendments to the state's Criminal Code. The Bill's aim was to legalise consensual same sex sexual activity. In order to be accepted by the conservative majority in the Upper House in Western Australia, however, certain amendments to the Bill needed to be accepted. These amendments, introduced by a Liberal member, the Hon Peter Foss (now Attorney General), were aimed at outlining in law the express concept that although homosexual sexual activity should not be illegal, the government should not be seen to be "encouraging" or "promoting" homosexuality.[21]

 
15. As Morgan notes, the lengthy preamble to the Act, a rare feature of Western Australian legislation, seems to indicate a general desire on the part of those conservative members who pushed through the amendments to outline in law an already entrenched homophobic rejection of same-sex sexual activity.[22] Specifically, the preamble states:

 
WHEREAS, the Parliament does not believe that sexual acts between consenting adults in private ought to be regulated by the criminal law:
AND WHEREAS, the Parliament disapproves of sexual relations between persons of the same sex;
AND WHEREAS, the Parliament disapproves of the promotion or encouragement of homosexual behaviour;
AND WHEREAS, the Parliament does not by its action in removing any penalty for sexual acts in private between persons of the same sex wish to create a change in community attitude to homosexual behaviour;
AND WHEREAS, in particular the Parliament disapproves of persons with care supervision or authority over young persons urging them to adopt homosexuality as a lifestyle and disapproves of instrumentalities of the state so doing:
Be it therefore enacted..., etc.


16. Morgan also notes that, "as evidenced by the wording of the Preamble, the Liberal Members who voted for the legislation were concerned to ensure that the decriminalisation of sodomy and private acts of gross indecency between males should not lead to a change in public values and morality on matters of homosexuality and to young people modelling their behaviour on this revised morality."[23] As such, whilst the Act should have served as a source of liberation for lesbians and gay men in Western Australia (in that it finally legalised consensual homosexual relations), any emancipatory potential was soon undermined by the fact that homosexuality as a unacceptable 'lifestyle' remains a stereotype actively endorsed by the legislation. Socially conditioned subordination thus becomes ingrained as a part of government policy. This is further evidenced in s. 23 of Part 2 of the Law Reform (Decriminalisation of Sodomy) Act, entitled "Proselytising Unlawful", which reads:

 
It shall be contrary to public policy to encourage or promote homosexual behaviour and the encouragement or promotion of homosexual behaviour shall not be capable of being a public purpose.[24]


17. As Morgan again explains, "the purpose of this section is to ensure that contracts for the promotion or encouragement of homosexuality are void as contrary to public policy and that public funds cannot be spent or charitable trusts established with such objectives."[25]

 
18. In a similar vein, Section 24 of the Act provides that it shall be:

 
unlawful to promote or encourage homosexual behaviour as part of the teaching in any primary or secondary educational institution.[26]


19. These sections are clearly based on the constructivist notion that sexuality can somehow be imposed upon a person through mere exposure to that sexuality. They also rely heavily on the discriminatory and rather offensive stereotype of gay men and lesbians as predatory and eager to recruit vulnerable youth. This concept also underlies s322A of the Western Australian Criminal Code (as amended by the Act), which makes sodomy unlawful for lesbians and gay men under the age of 21. The age of consent for heterosexuals is 16.[27]

 
20. Given the above, one must query whether it is in fact possible to implement the types of education strategies needed to reduce youth suicide and reduce the level of HIV/AIDS transmission in Western Australia. Put simply, s. 23 of the Decriminalization of Sodomy Act makes any frank and open discussion of homosexuality potentially very difficult. Safe sex education and suicide prevention campaigns aimed at gay youth (all of which require some degree of public funding if they are to have any substantial effect), could fall victim to this section. Indeed, campaigns of this sort, aimed as they are at presenting the realities of gay sex and giving confidence to gay youth through the promotion and distribution of positive images of same sex sexuality, could be seen as contravening the anti-proselytising element of this section if they are interpreted as 'promoting' homosexuality. Similarly, within the school environment (which we submit has a fundamental contribution to make within the context of same sex sexuality education and suicide prevention), s. 24 could intervene to prevent any such educational programs, again because they might be seen to promote homosexuality.

 
21. Lest it be assumed that provisions of this sort do not have any negative impact on the types of education strategies needed to combat youth suicide and HIV transmission rates, one need only examine the effect of similar legislation in the United Kingdom.[28] Specifically, in England, section 28 of the Local Government Act 1988 prevents a local authority from giving financial or other assistance to any person for the purpose of publishing or promoting homosexuality as an acceptable family relationship or for the purpose of teaching such acceptability in any maintained school. Commentators write that Peter Foss, the minister responsible for Western Australia's anti-proselytising clause, based his amendments upon section 28.[29] The discriminatory undertones that resonate behind such legislation is most apparent, and are blatantly displayed by one of the drafters of section 28, The Earl of Halsbury:

 
One of the characteristics of our time is that we have for several decades past been emancipating minorities who claim that they will be disadvantaged. Are they grateful? Not a bit. We emancipated races and got inverted racism. We emancipate homosexuals and they condemn heterosexism as chauvinist sexism, male oppression and so on. They will push us off the pavement if we gave them a chance.[30]


22. A similar attitude is also apparent in statements given by Peter Foss, presently the Attorney General of Western Australia, who in justifying his government's discriminatory age of consent provisions has stated that:

 
We are protecting those people who have the ability to respond both heterosexually and homosexually...We are protecting them from being pushed too early into responding homosexually when they have the opportunity to be responding heterosexually, of getting married and having a full and satisfying life as a heterosexual person...Homosexuality is not normal in our society. I do not want it to be normal in our society."[31]


23. At a very basic level, one needs to ask how legislation of this sort, accompanied as it is by comments of the sort noted above, cannot compound the isolation and disenfranchisement of lesbian and gay youth -- hence maintaining, if not contributing to, the high rate of youth suicide amongst gay youth. As Stevie Clayton, Co-convenor of the Gay and Lesbian Rights Lobby notes:

 
Young gay men, like young straight men, have sexual feelings and are capable of giving informed consent to sexual conduct long before reaching [21] years of age. Framing our laws in such a way as to require gay men to wait until they are [21] before they can be sexually active does not prevent such activity, it simply helps to create an environment where young men are secretive about their sexual conduct, are often forced to have anonymous sex such as at beats, have low self-esteem, and develop a negative attitude to a society which they see as oppressing them. There seems little doubt that such laws contribute to the high rate of male youth suicide in Australia.[32]


24. Admittedly, the argument can be made that no one has ever been prosecuted under the s177 of the Criminal Code for contravention of the provisions in question. True enough but, as indicated, this ignores the symbolic harm of actually having such legislation in existence. In addition, as recent experience regarding abortion in Western Australia testifies, merely because a provision is idle need not mean that it will not be employed on impulse.[33] Similarly, whilst section 28 in England remains idle in that it has never been successfully used to prosecute a council for disobeying it, it remains true that legislation of this sort potentially acts as a deterrent to assisting gay youth. This in turn can have some potentially explosive effects, for as Stevie Clayton notes within the context of discriminatory age of consent provisions, proselytisation clauses like those found in the WA Criminal Code and preferred safe sex education strategies:

 
These laws can have a major impact on the self-esteem and sexual development of young gay men, and can greatly hinder the fight against HIV/AIDS....It has long been accepted that the criminalisation of victimless conduct involving behaviours which risk transmission of HIV and other STDs, simply serve to isolate individuals from preventive education, early diagnosis and appropriate treatments, making it more difficult to achieve widespread behaviour change. Such problems are compounded by laws...which in effect make it illegal to counsel young gay men about safe sex.[34]


25. In a similar vein, Powell writes with regard to the presence of section 28 that sections like this may in fact (for fear of prosecution) prevent educators from doing what they must do to in order to educate those most in need of education:

 
We will never know how many teachers have never given honest and open teaching about sexuality for fear of breaking the law. We will never know how many services or youth groups have closed or never even begun because local authorities feared that to fund them would be to break the law. Further, we will never know how may young, vulnerable lesbians and gay men might not have taken such drastic action (suicide) had they had understanding people in authority to speak to or had access to positive images of gay people. [35]


26. One needs to ask whether or not we can risk having educators not educate on a matter in need of urgent attention for fear of possible prosecution. Experience seems to indicate that this is in fact a very real consequence of laws similar to those now present in WA. Indeed, this has been the conclusion of UK research analysing the effect of Section 28 on sexuality education in the UK.[36] As Vicki Powell notes referring to a survey report compiled by the Terrance Higgins Trust which surveyed teachers in England and Wales:
    
    
98% of teachers surveyed said their schools had sex education policies which give a high profile to HIV and Aids awareness. And yet, only half of these courses dealt with gay issues, and teachers were keen to stress that teaching about homosexuality was not promoting it as a positive lifestyle. The survey further found that the existence of Section 28 was sending a clear signal that there "may be something dangerous or wrong about addressing the needs of lesbian, gay and bisexual pupils." The report concluded that "this is an unnecessary, damaging and confusing message for teachers that adversely affects the lives of the young people with whom they work.[37]


27. Its effect is such that in failing to address such issues, ignorance and prejudice remain the norm -- a situation that merely compounds the isolation and sense of lack of self worth of gay and lesbian students. As Watney explains, "our respective education systems manifestly fail to acknowledge the actual diversity of human sexuality within the curriculum or outside it. In effect, children are taught that homosexuality is beyond consideration. This is bad for everyone in education, but most especially lesbian and gay teachers, and lesbian and gay students."[38]

 
28. With respect to prosecution, it is also worth noting that, given recent federal efforts to silence quite legitimate youth sexuality campaigns, the question must be asked whether or not prosecutory attempts will not be made. Indeed, the recent experience of the WA AIDS council is at odds with such the argument that no one in their right mind would attempt to limit materials aimed at preventing youth suicide. In 1997, the WA AIDS council, after receiving a grant from the National Youth Suicide Prevention Strategy, submitted a draft booklet and poster aimed at sexually confused youth contemplating suicide to the Federal Minister for Family Services, Judi Moylan. Ms Moylan rejected the campaign, arguing that it served only as "a recruitment aid for a particular lifestyle."[39] Apart from the fact that Ms Moylan based her conclusions on a discriminatory view of lesbian and gay sexuality, her actions do little to address the very real reality of gay youth suicide. Ms Moylan's further statement that "our primary concern has to be saving young lives and that means that community has to come to a better understanding about the issues that give rise to suicide among young people"[40] reveals a quite remarkable level of ignorance regarding the connection between sexuality and youth suicide. Indeed, whilst the WA AIDS Council Youth campaign was not banned under Western Australian Statute, given the fact that the funding came from the Federal Government, the views of the Federal Minister are indicative of the chronic lack of understanding within government generally, at both an elected and non-elected level, regarding this connection.

 
29. In sum, one needs to ask what kind of message it sends to gay and lesbian youth that their government thinks so little of them as human subjects that it is willing to legally silence quite legitimate efforts to ensure that these youth have real life options. The symbolic impact of this legislation (legislation which does little more than tell gay youth that their innate sexual desires are in fact not capable of being accepted by the society in which they live), does nothing but ensure young lesbians and gay men continue to suffer from the pressures of social marginalisation and the very real dangers resulting from ostracisation and silencing.
    
    

The Censorship Act (WA) 1995
 
30. In addition to discriminatory age of consent laws and the criminal prohibition on proselytisation outlined above, it is apparent that educators in Western Australia are faced with yet another piece of legislation which, because of its vague content and because of the political and apparent conservative nature of those charged with interpreting it, may prove equally problematic in so far as educating in the area of safe sex and sexuality issues is concerned.

 
31. It is clear that safe sex education materials, to be effective, must demonstrate to young gay men and lesbians what, exactly, safe sex constitutes. As such, visual representations of such safe sexual activity will often form an integral role within the context of educational policies aimed at teaching necessary safe sexual practices. Unfortunately, a careful reading of Western Australia's new Censorship Act reveals that in Western Australia, this may prove unfeasible.

 
32. In October, 1995, the Government of Western Australia introduced its new Censorship Act -- a legislative initiative aimed at "striking a balance between protecting the community, particularly children, from offensive material while ensuring that, as far as possible, adults have the right to determine what they view."[41] In determining what, exactly, constitutes "offensive" material, those responsible for classifying and limiting the distribution of these materials are asked to take into account "the standards of morality, decency and propriety generally accepted by reasonable adults."[42] This, we are told, is but one way to ensure that the public is duly protected from exposure to objectionable sexual material which is "simply beyond the pale and (which) should not be available to the public under any circumstances."[43] In 1868, in the case of R v Hicklin[44], Cockburn CJ outlined when the State can justifiably limit the distribution of materials it deems obscene. He held that the depravation and corruption of "those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall" is the primary issue to be considered. This test, concerned primarily with corruption of those who use pornography and the need to impose a rigid moral code, again finds expression in section 8(a) of the Censorship Act, which reads:
    
    
8. The matters to be taken into account in making a decision on the classification of a publication include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults.



33. Similarly, in determining whether or not publications should be refused the right of distribution, reference must be had to section 10 of the Act, which reads:
    
    
10. A publication will be classified as refused if, in the opinion, of the Minister, the publication:

(c) describes or depicts, in a manner that is likely to cause offence to a reasonable adult --
 

(i) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct;

(ii) sexual conduct with or upon the body of a dead person;

(iii) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct;

(iv) bestiality;

(v) acts of torture or the infliction of extreme violence or extreme cruelty; or

(vi) an act or matter that the Minister has determined, having regard to the standards of morality, decency and propriety generally accepted by reasonable adults, is contrary to the public interest.



34. A basic reading of the above indicates that the primary focus of the Act is on the regulation of materials which are likely to offend those who view them and which, because they are indecent (hence offensive), are likely to undermine society's moral fibre. This is problematic, to say the least. One of the very real concerns with legislation which focuses on moral upkeep, is the extent to which it will be used to suppress the expression of sexual practices and identities which do not result in the very real harms of pornographic production and distribution -- ie, the harms that result from those materials which undermine society's equality interest. This is a point best articulated by the Canadian Supreme Court in its decision in the case of R v Butler,[45] a case which upheld Canada's anti-pornography laws on the basis that pornography constitutes a threat to society's equality interest generally and the right to sexual equality specifically. In Butler, the Canadian Supreme Court rejected the traditional morality-based approach to pornographic harm (similar to the approach found in the WA Censorship Act). Instead, the Court opted instead for an approach which recognises pornography as an issue of sexual inequality and discrimination. Although it is beyond the scope of this paper to outline the decision in Butler in any great detail or the debate surrounding the regulation of pornography that followed[46], it is worth noting, at least for the purpose of trying to make sense of Western Australia's 's new Censorship Act and its likely impact on safe-sex and sexuality education campaigns, the Court's comments with respect to those legislative efforts which aim to regulate sexual content on the basis of immorality. Specifically, the Court holds that:
    
    
... (this approach) is no longer defensible... To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms...This is "legal moralism" - a majority deciding what values should inform individual lives and then coercively imposing those values on minorities. The prevention of "dirt for dirt's sake" is not a legitimate objective...(emphasis added).[47]


Outlining the types of pornographic harms that should be addressed, the Court continues:
 

The effect of this material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism (is) basic to any human interaction, is clearly justified in controlling any medium of depiction which violates this principle (emphasis added).[48]


35. The argument can, of course, be made that Canadian precedent holds no weight in Australian law. While it is arguably true that Western Australia is under no obligation to follow the legislative and judicial efforts of other nations, it would seem to us that any government truly committed to the concept of systemic equality would attempt to do all that it can do to ensure that this objective is met. The Canadian Courts have long struggled with the concept of obscenity. Until recently, Canadian and Australian approaches to the regulation of obscenity remained almost indistinguishable.[49] Similarly, both nations have done much to pass legislation aimed at eliminating social inequalities. In 1993, the Canadian Supreme Court took this step one step further by acknowledging the role of pornography in maintaining these inequalities. While Australian jurisdictions are under no obligation to do the same, it would seem to us that, given this country's apparent commitment to systemic justice, the decision in Butler does at least merit consideration. This is particularly true with respect to the Court's analysis of what it is anti-pornography should and should not do.
    
    
36. The Court in Butler specifically rejects the notion that pornographic speech should be limited in order to protect public morality. In so doing, it dismisses an entire history of judicial reasoning concerned only with the preservation of majoritarian moral codes. Canadian obscenity law originally developed within the context of preventing moral corruption through exposure to sexually explicit materials. An overlapping but broader purpose was to prevent offence to public sensibilities. Underlying assumptions informing these views were and are that women's naked bodies are indecent, sexual displays are immodest, unchaste and impure, homosexuality is repulsive and sex outside of traditional marriage or in other than traditional configurations is a sin.[50] In Butler, the Court holds that the protection of these views is no longer defensible. Rejecting morality, the Court thus defines the harms of pornography within a strict sex equality context, adding "if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading materials."[51]

 
37. Despite the radical re-thinking of obscenity law occurring in jurisdictions not all that dissimilar from Western Australia, the WA Censorship Act does not regulate pornography as an issue of sexual inequality. Rather, it focuses solely on morality and prurient interest. This is potentially quite problematic, particularly within the context of safe-sex education and lesbian and gay sexuality education strategies. Because of the Acts obsession with harms of immorality, it is quite feasible that those materials which are not harmful, but which are deemed "offensive", will be deemed illegal and ultimately censored.[52] This is particularly true of some images of same-sex sexual activity -- images which, it can be argued, have the potential to be both liberating and central to the formation of a positive sexual identity. For as Jerald Moldenhaur explains:

 
As gay people, we know how important literature is in informing our evolving identity and furthering our social empowerment. Because our 'difference' as gay and lesbian people is largely defined by our sexuality, it is especially important for us to be able to communicate and share experiences about this subject.[53]


38. We should not be seen here as implying that all presentations of same-sex sexual activity are liberating. On the contrary, as has been argued elsewhere, gay male pornography, for example, can in fact reinforce many of the harms to systemic equality caused by the production and distribution of much heterosexual pornography.[54] What we are saying, however, is that those sexual images which do not violate the equality-based analysis of pornographic harm now being used in other jurisdictions (images which should in fact be used to educate young gay men about the need for safe-sex sexual practices and self-respect), should not be censored. Unfortunately, because the Censorship Act (WA) focuses solely on the apparent harms of immorality, those same-sex materials which are not a threat to systemic equality do risk being unjustifiably censored.
    
    
39. Lest it be thought that concerns regarding the possible censorship of materials which present positive presentations of sexuality are far fetched, it is worth noting recent statements by former WA Minister for the Arts, Graham Kierath. When viewed within the context of his government's new censorship legislation, his comments highlight the very real likelihood that legislation which is completely devoid of any equality analysis will prove ineffective in dealing with sexual representations which are harmful, while being used to restrict some representations which clearly are not.
    
    
40. In 1995, the work of Robert Mapplethorpe was exhibited in Perth, Western Australia. Prior to the retrospective's arrival in Perth, a "Life Ministries" church representative, Dwight Randall, stated that "the depraved works of a dead homosexual were sick and should be banned" and argued that the Attorney General should act swiftly to ensure that the exhibit was banned.[55] Although the exhibit was not banned, it was denied funding by the government's arts sponsoring ministry, Healthway. Health Minister Graham Kierath, the Minister ultimately responsible for pulling funding from the exhibit, explained his decision by telling Parliament that some of the photographs were "nauseating, perverse, sleazy and depraved...(showing) some of the most horrific records of anal sex." He later added that "if it were not for the sort of activity that is displayed in some of Mapplethorpe's works, he and many other talented people might be alive today."
    
    
41. There are many valid reasons to oppose the work of Robert Mapplethorpe. One might start with the fact that much of his work sexualizes and celebrates some of society's most oppressive racial stereotypes and the inequalities built on racial difference.[56] Indeed, one might ultimately ask whether his work encourages racial hatred and promotes racial inequality. These questions were not asked, however. Instead, those who are concerned with sexualized racism and inequality again found themselves confronted with a government minister concerned only with what, in his eyes, was the perverse expression of a perverse sexuality.
    
    
42. Regardless of one's personal views on anal or oral intercourse, it should by now be evident that a massive undermining of any individual or systemic equality interest is unlikely to arise from all representations of consensual, non-vaginal sex. On the contrary, for young gay men who are raised to believe that homosexual contact is deviant and unnatural (the same group of young men who statistically are most at risk of self-inflicted harm), representations of safe, consensual and equality-based same-sex sexuality can in fact be quite life affirming and life saving. This is an issue that has as much as been laid to rest in other jurisdictions, for as explained in yet another recent Canadian case, Little Sisters Book and Art Emporium v. AG Canada:

 
There is no jurisprudence supporting the proposition that all depictions or descriptions of anal intercourse are obscene in and of themselves on the basis that anal penetration is inherently degrading or dehumanizing.
The prohibition of representations of that practice (anal sex) discriminates against male homosexuals. It deprives them of representations central to the values and culture of the minority group to which they belong. It (also) constitutes an embargo on safe-sex guidelines within Canadian homosexual communities at a time, in the context of the AIDS epidemic, when such guidelines are particularly important.[57]


43. Important for our purposes is the Court's reasoning that presentations of those sexual practices equated with lesbian and gay sex are not, per se, socially harmful. Indeed, images of safe sexual practices that are premised upon notions of equality, mutuality, reciprocity and respect can do much to ensure that those most in need support and guidance are offered it.
    
    
44. Experience in other jurisdictions has proven that that anti-pornography legislation which regulates on the basis of morality and public decency is ripe for abuse, inconsistent application and overall ineffectiveness. Unfortunately, Western Australia looks set to make the very mistakes now being rectified elsewhere. Indeed, given the attitude of the government in charge of enforcing the WA Censorship Act, reflected in the comments of Mr Kierath, and given this government's already proven discriminatory attitude towards lesbians and gay men as reflected in those Criminal Code provisions which prohibit the mere "promotion" of homosexuality, there is little reason to believe that this most recent Western Australian initiative will prove any different in this regard. This becomes even more evident once we examine the legislation's regulatory scheme -- ie, the mechanism in place for determining which materials are obscene. A close reading of this section of the Act reveals an administrative structure ripe for error and discriminatory application - a fact which again does not bode well for those wanting to educate in the area of youth sexuality.
    
    
45. Part 2 of the Censorship Act requires the formation of a Censorship Advisory Committee responsible for the classification of publications. The first thing to note with respect to the powers of this Committee is that the submission of publications to it is permissive, rather than mandatory. Pursuant to s. 15 of the Act:
    
    
(a) The Minister may classify a publication after considering a report of the Committee as to classification of the publication

(b) The Minister may classify a publication on the Minister's own initiative, without requiring the publication to be referred to the Committee.



46. Section 15 (1)(a) makes no reference to the level of consideration the Minister is to afford the Committee's report. In fact, s. 15(1) (b), which allows the Minister to classify a publication on her own initiative, without requiring the publication to be referred to the Committee, begs the question as to what role the Committee actually plays in the classification process. It also raises the issue of whether the creation of the Committee is merely a form of lip service, lending a spurious impression of legitimacy to the Act itself.
    
    
47. The above also needs to be read in light of section 17 of the Act, which allows the Minister to "reclassify a publication or revoke the classification of a publication at any time after the publication is classified". A reading of this section gives the impression that the classification of publications is squarely under the control of one government Minister -- a remarkable legislative feat and one ripe for error and inconsistent application, particularly in light of this government's quite clear views on homosexuality.

 
48. Section 17, in turn, needs to be read in light of Part 3 of the Act, which concerns the classification of films and computer games. While the Commonwealth Censorship Board is to be appointed censor for Western Australia and as such is entitled to make decisions under the Act regarding the classification of films, videos and computer games, the Western Australian Minister retains the right to vary Commonwealth classification decisions for films and computer games (despite the fact that jurisdiction in this regard belongs to the Commonwealth) when she or he deems it necessary to do so in the public interest.[58] This power of veto over Commonwealth decisions, and the power to substitute decisions of the Minister for the Commonwealth Censor, is extraordinary, to say the least. It essentially provides the WA Minister for Censorship with the same untamed discretion that s(he) wields over the classification of publications and requires that s(he) apply the same moralistic, hence ineffective and potentially discriminatory, standard of adjudication.
    
    
49. In the event that the Minister does choose to adhere to the recommendations of the Censorship Committee, it is also worth noting that the composition of this Committee raises serious questions about its ability to adequately and fairly perform its role. Section 120 outlines the composition of the Committee, as follows:
    
    
120. (1) The Committee consists of -
 
(a) not less than 3 and not more than 7 persons appointed by the Minister; and
(b) an Officer of the Public Service appointed by the Minister.


(2) Of the persons appointed under subsection (1) (a) -
 
(a) at least one is to be a woman

(b) at least one is to be a recognised expert in literature, art or science; and

(c) at least one is to be a certified practitioner as defined in section 3 of the Legal Practitioners Act 1893.



50. The Attorney General, speaking before Parliament, outlined the need to ensure that the composition of committees like the Censorship Advisory Board are "as far as practicable, broadly representative of the community."[59] Examining the above, one queries which community the Minister is referring to. Perhaps more importantly, one needs to ask what mechanisms are in place to ensure that the people who are chosen to undertake this task are in fact capable of determining whether or not a publication violates the "public interest" criteria upon which the Act is based. Section 14 of the Act, for example (that section designed to provide assistance to those asked to advise the Minister), states only that the Committee may, if it decides to do so:
    
    
(a) show a publication referred to it to any person whom it considers may be able to assist it in forming an opinion of the publication on which to base its report in respect of the publication;

(b) invite such persons as it thinks fit to make written submissions to the Committee in relation to the publication; and,

(c) obtain information from such persons, and make such inquiries as it thinks fit, in relation to the publication.



51. Again, the language here is permissive, not mandatory. One should also note that the legislation offers no guidance with respect to the types of people from whom the Committee should seek assistance. This is problematic. Although it is beyond the scope of this paper to outline in detail the individual and systemic harms that result from both the production and distribution of pornography,[60] it is clear, given the Act's overriding objective, -- that of maintaining public morality -- that those most harmed by pornography or who understand the effect of pornography in the lives of those abused and discriminated against as a result of its production and distribution will, more likely than not, not be consulted. There is little space for those who know something about sexual exploitation under a legislative scheme which cares only about sexual representations which cause offence to adult sensibilities - a fact which again highlights the very real risk that those materials which are not harmful will nonetheless be seized in the name of public decency. This is particularly problematic for educators who now find themselves having to teach the realities of safe same sex sexual activity but who are confronted with a piece of legislation which appears to disallow access to those materials needed to do it.[61]


Conclusion

"Almost from the beginning, I knew that I was somehow different from the other guys. I was always an outcast at school. Books were my best friends. I ostracised myself from the rest of the world because I felt as if I could trust no one, not even my parents. The pressure of feeling so alone manifested itself in fits of manic depression, hysterical outbreaks and, eventually, suicidal tendencies. I would spend hours sitting on my windowsill, wondering whether jumping would make things better and wishing that someone would help me. All that I needed was to be told that my feelings were normal and I wasn't the only one who had them." Devin Berringer, age 17[62]

52. In light of the many problems facing lesbian and gay youth, problems which have manifested themselves in unacceptably high rates of suicide and HIV/AIDS transmission, it is clear that what is most needed to curtail further tragedy is an environment conducive to frank, open and progressive discussion on sexuality issues. Unfortunately, as this discussion has demonstrated, prevailing West Australian law appears to prohibit the implementation of those education strategies aimed at creating such an environment. Indeed, the Western Australia's criminal law, replete with provisions that prohibit the "promotion of homosexuality" and age of consent laws that discriminate against those engaging in consensual same-sex sexual behaviour do little more than add to the isolation and exclusion experienced by young lesbians and gay men, while discouraging those best suited to alleviate this pain from doing anything about it. Add to this a now dated and regressive piece of censorship legislation more concerned with public morality and indecency than individual safety and systemic equality and what one finds is an educational system in which insecurity and ignorance about sexuality remains the norm.