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2007/14: Discrimination: should heterosexuals and lesbians be excluded from a gay bar?<BR>

2007/14: Discrimination: should heterosexuals and lesbians be excluded from a gay bar?


What they said ...
'The VCAT exemption only attacks the symptoms but not the cause. If we want to tackle homophobia, we need to look at prejudices in society, what fuels them and how we can change them. A blanket ban on all women and straight men is certainly not the solution'
Sally Goldner, a media spokesperson for TransGender Victoria

'This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence'
Cate McKenzie, the deputy president of VCAT, explaining why she agreed to allow for the exclusion of heterosexuals and lesbians from the Peel Hotel

The issue at a glance
On May 24, the Peel Hotel in Collingwood was granted an exemption to the Victorian Equal Opportunity Act, allowing the venue to refuse entry to all women and heterosexual men.
The exemption was granted by the Victorian Civil and Administrative Tribunal (VCAT) and will last for three years. The exemption was granted on the basis that a ban on entry for women and straight men will prevent 'sexually based insults and violence' towards male homosexual patrons.
There have been those who have argued that the granting of this exception is discriminatory.

Background
Victoria's Equal Opportunity Act (1995)
The objectives of the Victoria's Equal Opportunity Act (1995) are-
(a) to promote recognition and acceptance of everyone's right to equality of opportunity;
(b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes including race, gender and sexual orientation;
(c) to eliminate, as far as possible, sexual harassment;
(d) to provide redress for people who have been discriminated against or sexually harassed.

Exemptions
The Equal Opportunity Act (1995) includes exemptions which allow discrimination in the following cases: charities; legal incapacity; pensions; superannuation; temporary exemptions and welfare measures & special needs.
There are also exceptions that apply to the protection the Equal Opportunity Act offers in the following areas: accommodation, clubs, education, employment, sport, provision of goods and services.
The Victorian Civil and Administrative Tribunal is the body to which groups and individuals can apply to have an exemption from the operation of the Act granted in a particular case.

The Victorian Civil and Administrative Tribunal (VCAT)
VCAT hears and determines complaints referred to it by the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 1995 and the Racial and Religious Tolerance Act 2001.

Powers of VCAT
If it finds a complaint proved VCAT may make any of the following orders:
i) That the respondent stop committing any further act of discrimination against the complainant;
ii) That the respondent pay the complainant compensation fixed by VCAT;
iii)That the respondent perform any act with a view to making good any loss, damage or injury suffered by the complainant;
iv) Find the complaint or any part of it proven but decline to take any further action.

Internet information
The full text of Victoria's Equal Opportunity Act (1995) can be found at http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/95c43dd4eac71a68ca256dde00056e7b/FFDF2614F930DB2ACA25725100015560/$FILE/95-42a047.pdf

The Victorian Civil and Administrative Tribunal's ruling in the Peel Hotel application for an exemption can be found at http://www.austlii.edu.au/au/cases/vic/VCAT/2007/916.html

The Victorian Civil and Administrative Tribunal's Internet site can be found at http://www.vcat.vic.gov.au/CA256DBB0022825D/HomePage?ReadForm&1=Home~&2=~&3=~
The site outlines the full scope of the Tribunal's responsibilities.

The American Broadcasting Company (ABC) has an item on its Internet site outlining the Peel Hotel discrimination exemption ruling and including 35 comments both for and against the ruling posted by readers.
This article can be found at http://www.abcnews.go.com/International/wirestory?id=3218011

On May 29, 2007, the British Timesonline Internet site published an article on the Peel Hotel discrimination exemption and outlining some of the arguments for and against the ruling. The full text of the article can be read at http://www.timesonline.co.uk/tol/news/world/article1851889.ece

On June 2, 2007, Green Left Weekly published a news report titled 'Pub wins the right to ban women, straights'. The item gives some views both for and against the decision. The full text of the article can be found at http://www.greenleft.org.au/2007/712/36986


Arguments against placing restrictions on heterosexuals and lesbians patronising of the Peel Hotel
1. The Victorian Civil and Administrative Tribunal (anti discrimination board) is not equitable when allowing exceptions
It has been claimed that the manner in which the anti discrimination board applies its rulings is counter productive as it is not consistent. Exceptions to anti-discrimination rulings are allowed, which, it has been claimed is disturbing in itself. Possibly more disturbing is that exceptions, it is argued, are not granted in a consistent manner. This makes it appear that one group allowed an exception has been favoured over another for which similar allowances were not made.
This point has been made by Andrew Bolt in an article published in The Herald Sun on May 30, 2007. Mr Bolt stated, 'When other publicans have asked our anti-discrimination commissars for this same right to help patrons "feel comfortable" by discriminating against straights who'd "destroy the atmosphere" they've been rejected.
The difference? They weren't trying to help gay drinkers, but straight women who might otherwise feel swamped by studs.
There are other inconsistencies. Muslim women may exclude non-Muslims from sessions at public pools, but in Sydney the owner of the Scruffy Murphy's pub is in court for banning Middle Eastern and Islander men in his bid to stop gang violence and save his licence.
More: the Royal Victorian Bowls Association was forced to open its men's pennant competition to women, but the Sydney Catholic Education Office was stopped from offering men-only scholarships to attract more men to a teaching profession unhealthily dominated by women.
Still more: pastors warning of jihad were convicted of hate-preaching, but truly hate-preaching imams are yet to be touched.'

2. The Victorian Civil and Administrative Tribunal (an anti discrimination board) is divisive in the manner in which it allows exceptions
It has been claimed that the supposed inequities in the manner in which The Victorian Civil and Administrative Tribunal has the potential to create ill-feeling between groups who have sought such exceptions - some successfully, others unaccountably not.
It has also been suggested that the very fact of granting exceptions in the application of legislation supposed counter discrimination can be seen as an endorsement of discrimination.
Andrew Bolt, in an article published in The Age on May 30, 2007, has stated, 'But the overall effect of [The Victorian Civil and Administrative Tribunal's] meddling - so often unnecessary - is corrosive. It's leading many to claim our authorities treat some minorities as more deserving than others. And how divisive is that?'

3. There is no practical way to enforce a ban on non-gays
It has been noted that a ban on heterosexuals and lesbians accessing particular venues is practically unenforceable as there is no simple, accurate way of determining who is a member of either of these groups.
Louise Evans in an article published in The Australian on June 5, 2007, asked, 'But how do you decide or prove who's gay, hetero, bi, transvestite, celibate, in the closet, a fag stag, hasbian or yestergay? Is that woman wearing a tight white Bond's singlet with no bra a horny hetero or a lipstick lezzo? Is that guy wearing a tight white Bond's T-shirt a hetero on the hunt or a gay on the make?'
A similar point was made by Steve Dow in an article published in The Age on May 30, 2007. Mr Dow noted, 'The poor bouncers have got their work cut out for them now, trying to tell gay from straight. Got to tell you, my own gaydar is kind of rusted, so I don't fancy their chances.
Consider this: I spent a couple of hours not so long ago having beers with a guy in a Sydney gay bar called Stonewall. He was adamant he was straight from the moment we were introduced, so I was awfully glad there was just conversation, and no sexual tension. But later he followed me up the street, asking me if I'd like to, you know, "explore". I declined the offer, flattering as it was from Mr "I'm Not Gay".'

4. A ban on non-gays could foster anti-gay sentiment and does not address its causes
There are those who believe that the current ruling entrenches prejudice, rather than acting to address what causes it. They similarly suggest that it serves to cut gays off from sections of the heterosexual community who might otherwise have been their supporters.
Sally Goldner, a media spokesperson for TransGender Victoria has stated, 'Segregation doesn't stop violence and increases further isolation of a minority group in society. The VCAT exemption only attacks the symptoms but not the cause. If we want to tackle homophobia, we need to look at prejudices in society, what fuels them and how we can change them. A blanket ban on all women and straight men is certainly not the solution.'
The owner of gay and lesbian dance venue The Market Hotel, Spiro Condos, has said, 'I understand a need for the ruling; however it is taking a backward step for our fight for equal rights.'
Similarly, Andrew Bolt, writing in The Herald Sun, has claimed that a ban such as that imposed at the Peel Hotel is a divisive, entrenching difference between people in a way that is itself discriminatory. Mr Bolt has stated, 'I don't deny our discrimination police can do good ... But the overall effect of their meddling - so often unnecessary - is corrosive. It's leading many to claim our authorities treat some minorities as more deserving than others.'
Finally, Steve Dow, in an article published in The Age on May 30, 2007, has suggested that banning heterosexuals and lesbians from venues frequented by gays could lose gays friends and supporters who could be important when gays are seeking to have their civil rights protected. Mr Dow has written, 'Here's a tip, Peel patrons. Instead of being mean with our dance space, let's share it. Soon there will be a report by the Human Rights Commission tabled in Federal Parliament that intelligently outlines the urgent need to end discrimination against same-sex couples in superannuation, wills and the like. That's when we'll need our friends more than ever, dancing to the same song.'

5. The comfort and safety of patrons can be assure without a ban
It has been suggested that the comfort and safety of gay patrons can be assured without having to place a ban on heterosexuals and lesbians. According to this line of argument, what is at issue is not the sexual orientation of potentially those who visit the club, but their behaviour. Thus, any patron who behaves boorishly, aggressively or otherwise inappropriately could be removed by bouncers or security guards as they would be from any other club or hotel.
This point has been made by Steve Dow in an opinion piece published in The Age on May 30, 2007. Dow has suggested, 'Surely though, it's a simple case of giving the bouncer the heads up to bounce people behaving inappropriately, rowdily or violently, without checking the sexuality of such mischief-makers at the door.'

Arguments for placing restrictions on heterosexuals and lesbians patronising of the Peel Hotel
1. Gay men are entitled to a place where they feel safe
It has been claimed that heterosexual and lesbian patrons of the Peel Hotel have sometimes been threatened and physically intimidated by gay patrons. VCAT deputy president Cate McKenzie has claimed, 'Sometimes heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons.'
Tom McFeely, the manager of the Peel Hotel, said, 'If there are too many lesbians it makes me uncomfortable and makes the gay men who come to my bar uncomfortable. To be honest, they tend to be more aggressive than not. I own the joint and I felt extremely intimidated last Friday walking through the dozens of lesbians playing pool.'

2. Gay men are entitled to a place where they feel free to express affection in public
It has been claimed that the sole issue is not that gay men may feel at physical risk. It is also they case that they may feel unable to display affection in a public venue. This point has been made by Cate McKenzie, the deputy president of VCAT who has stated, '(This exemption) seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere.'
A similar point has been made by Steve Dow, writing in The Age. Dow, who is gay, has no objection to sharing the Peel Hotel or any other public entertainment venue with heterosexuals or lesbians, but only so long as they are prepared to accept him showing reasonable physical affection to his partner. Steve Dow has written that he is prepared to share entertainment venues with those of different sexual orientations 'So long, that is, as they don't mind me snogging my boyfriend of eight years on the dance floor, holding hands or any other general above-the-waistline canoodling.'
It is fear of not being bale to openly show affection to their partners that has prompted many gays to support gays-only venues.
Cate McKenzie stated when making her ruling, 'This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue.'

3. Gay men are entitled to a place where they are not gawked at
It has been claimed that significant groups of heterosexuals come to a venue like the Peel Hotel in order to watch the gay patrons who regularly visit this club. It has been claimed that such unwanted attention makes the gay men feel awkward and uncomfortable and generally makes it difficult for them to enjoy their evening.
The Peel Hotel manager Tom McFeely said, 'The hotel predominantly markets itself towards homosexual males, towards gay men, and we want to protect the integrity of the venue as well as continue to make the men feel comfortable. When large numbers of heterosexuals or even lesbians are in the hotel that changes the atmosphere and many gay men can feel uncomfortable.'
VCAT deputy president Cate McKenzie claimed that allowing straight men and women into the club would defeat the purpose of the venue. 'This would undermine or destroy the atmosphere which the company wishes to create,' Ms McKenzie said.
Ms McKenzie further suggested that some straight women came to the club because they found the gay patrons entertaining. She noted, 'To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at, as one would at an animal at a zoo, devalues and dehumanises them.'
In her ruling Ms McKenzie stated, 'Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely's affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group's enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.'

4. The vast majority of hotels and clubs will still predominantly cater for heterosexuals and there are alternate provisions made for lesbians
It has been claimed that denying heterosexuals access to a club such as the Peel Hotel does not infringe on their rights in any significant way. According to this line of argument as the vast majority of clubs and hotels cater primarily for heterosexuals this group would in no way be denied the opportunity to have an evening out and would continue to have a large number of venues from which to choose.
Mr McFeely, the manager of the Peel Hotel, has stated, 'We're one of about 2,000 venues in Melbourne. These heterosexuals have other places to go to, my homosexuals do not.'
Liberty Victoria's vice-president, Michael Pearce, has also supported the decision, stating, 'I don't think this treats heterosexuals unfairly. There are countless other hotels where heterosexual people can go and meet.'
It has also been noted that there are a number of clubs and other venues that cater predominantly for lesbians.
In her ruling Cate McKenzie stated, 'I accept Mr McFeely's [the manager of the Peel Hotel's]evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these.'

5. This is not really a ban, but a means of being able to control the relative composition of patrons
It has been claimed that what has been granted is the power to exclude certain groups from the Peel Hotel, but that this is not a simple blanket ban on their attending the venue. Thus the manager of the Peel can use his discretion as to whether it is appropriate to exclude some patrons depending on their behaviour and the overall composition of the club's patronage on any given night.
This distinction was stated in the ruling VCAT gave which states, 'The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism.'
To this end the ruling allows the right 'to refuse or restrict entry to the Peel Hotel ...to people who do not identify as homosexual males where to allow entry or unrestricted entry would, in the opinion of the applicant, its agent or employee, adversely affect the safety or comfort of the venue for its homosexual male patrons, or the nature of that venue as a venue primarily for homosexual male patrons.'

Further implications
It has been suggested that the ruling in the Peel Hotel case may be seen as a precedent. Thus, for example, if another hotel in the area where to decide to designate it a predominantly lesbian establishment it might apply to the VCAT to have the access of heterosexuals and gays to its premises restricted.
The judgment may have wider implications for the hotel industry, according to Australian Hotels Association Victoria chief executive Brian Kearney.
'We support the Peel decision, in that we support flexibility in a venue's capacity to respond to the interests of its patrons,' Mr Kearney said. 'In the past there have been unsuccessful applications for exemption from the equal opportunity laws where a venue wants to restrict the numbers of males entering an establishment to ensure a better gender balance. Maybe this will lead to such applications being looked at more closely.'
While the further possible implications of the VCAT ruling to the hotel industry are obvious it could also effect who could be given access to a variety of other venues including sporting and recreational facilities and places of worship where the comfort of the principal group of attendees could be regarded as being at risk.
While such exemptions from the operation of Victoria's Equal Opportunity Act (1995) can be seen to address a particular need, there is a concern that in the long term, while dealing with the symptoms of discrimination, they may actually only feed the ignorance and prejudice that are its cause.

Newspaper items used in the compilation of this issue outline
The Australian: June 5, page 11, comment (ref to banning of lesbians and heterosexuals at Sir Robert Peel Hotel) by Louise Evans, `Chucking out over sexual tastes hurts the bottom line'.
The Age: May 31, page 14, letters, `Security, not bans, is the pub answer / Outrage off target'.
The Herald-Sun: May 30, page 21, comment by Andrew Bolt, `Who's in, who's out'.
The Herald-Sun: May 29, page 17, cartoon.
The Herald-Sun: May 29, page 18, editorial, `Gay conundrum'.
The Age: May 30, page 15, comment by Steve Dow, `Don't lock out the heterosexuals'.
The Australian: May 29, page 7, news item (photo) by S Lunn, `Bar bans lesbians, straights'.
The Age: May 29, page 4, news item (photos, incl of publican) by D Miletic, `Straight-out ban at gay venues sparks uproar'.
The Herald-Sun: May 28, page 2, news item (ref to Sir Robert Peel Hotel, Melbourne and Equal Opportunity Act exception) by M Doran, `Gay pub can out straight patrons'.
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