Extending the Olive Branch of Discrimination Law: LGBTIQA+ Attributes and Identities

Visiting Scholar Seminar - Liam Elphick, lecturer at Monash University

At the heart of discrimination law is the question of who is granted protection from unequal treatment. The class of rights holders under discrimination law is, by its very nature, limited. This is achieved through the use of ‘attributes’ – traits on the basis of which adverse treatment, and adverse effect, is prohibited. The most well-known and established attributes are sex, race, and disability. Discrimination law scholars and theorists have long vacillated as to why certain attributes are protected and not others. The concept of ‘immutability’ has increasingly become a seminal theory: that discrimination law protects traits which cannot be changed, or should not be changed. This scholarship has rarely, however, focused on LGBTIQA+ attributes, which are relatively new additions to discrimination law. The very ‘queerness’ and fluidity which underpins sexuality and gender identity poses problems for existing theories on attributes. In this paper I connect these concepts and consider the question: what is the normative basis of extending the olive branch of discrimination law to queer communities, and does this require a rethinking of how we justify discrimination laws?