The Commonwealth Department of Health is currently undertaking a review of the National LGBTI Ageing and Aged Care Strategy, with detailed public submissions due by Friday 12 May 2017. Full details here.
My submission focuses on the issue of LGBTI anti-discrimination protections, and answers two of the main questions in the submission template:
5.3 In terms of the LGBTI Strategy, where do you think the government and aged care sector need to improve?
In this submission, I would like to raise one specific area where, despite some progress having been made, there remains a significant, and urgent, need for further action – and that is the anti-discrimination protections that are provided under the Commonwealth Sex Discrimination Act 1984.
One of the (many) positive features of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the ‘carve-out’ to ensure that Commonwealth-funded aged care services operated by religious organisations could not discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) people accessing those services.
As noted in section 37:
(1) Nothing in Division 1 or 2 affects…
(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(2) Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:
(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and
(b) the act or practice is not connected with the employment of persons to provide that aged care.”
This exception from the over-arching ‘religious exceptions’ provided under the Act was a major achievement in and of itself, removing discrimination from a vulnerable group within a vulnerable group (older LGBTI people within the overall LGBTI community).
More importantly, the aged care carve-out in the Commonwealth Sex Discrimination Act 1984 underpins many other achievements of the National LGBTI Ageing and Aged Care Strategy in improving the circumstances of older LGBTI people who live in facilities operated by religious organisations.
However, from my perspective, this important reform remains incomplete – because, while it is essential that all Commonwealth-funded aged care services are not permitted to discriminate against LGBTI people accessing their services, I do not believe such services will ever be completely inclusive while they retain the ‘right’ to discriminate against LGBTI people who are employed there.
This can be illustrated by considering this issue – the ongoing ability of Commonwealth-funded aged care services operated by religious organisations to fire, or refuse to hire, LGBTI employees – in the context of two of the Principles, and associated Goals, of the existing Strategy.
- Access and Equity
The 3rd Principle contained in the National LGBTI Ageing and Aged Care Strategy is “Access and Equity – All areas of aged care understand the importance of, and deliver, LGBTI-inclusive services”. This is reflected in the 3rd Goal: “Ageing and aged care services will be supported to deliver LGBTI-inclusive services.”
Of course, significant work can be, and in many cases has been, done to ensure that the services provided directly to LGBTI older people are as inclusive as possible. But, my fundamental question is: how genuinely inclusive can a service be, taken as a whole, where a member of staff can still be disciplined, or even terminated, for merely disclosing their sexual orientation or gender identity?
Is it ‘inclusive’ when a member of staff can be punished for engaging with a LGBTI service user by expressing empathy with them, exchanging personal stories about their respective same-sex partners in the ordinary course of conversation?
Is it ‘inclusive’ when an employee can be fired for simply talking with an older LGBTI resident, asking questions about that person’s background and in the process disclosing their own trans gender identity?
The answer must be an unequivocal no. The threat of discrimination against LGBTI employees in Commonwealth-funded aged care services operated by religious organisations casts a long shadow over the ability for any such facility to be genuinely inclusive.
The only way a fully inclusive aged care service can be provided is by ensuring all LGBTI employees are able to be themselves, and express themselves, in their workplace, without the risk of punishment for who they are or who they love.
The 4th Principle featured in the National LGBTI Ageing and Aged Care Strategy is “Quality – Care and support services provide quality services that meet the needs of older LGBTI people, their families and carers and are assessed accordingly”.
This principle is then reflected in the 4th Goal: “LGBTI-inclusive ageing and aged care services will be delivered by a skilled and competent paid and volunteer workforce.”
There is, however, an inherent contradiction in setting quality as a principle and goal while at the same time legally allowing some Commonwealth-funded aged care facilities to fire, or refuse to hire, staff simply because of their sexual orientation or gender identity.
Such an exception means there will inevitably be some situations where the best person for a particular position is not employed due to factors that have absolutely nothing whatsoever to do with their ability. This substantively undermines the ‘quality’ that such a service provides to its residents (both LGBTI and non-LGBTI alike).
In short, aged care services should be delivered by the most ‘skilled and competent paid and volunteer workforce’, not the most ‘skilled and competent cisgender heterosexual paid and volunteer workforce.’
The inconsistency that lies at the heart of the Strategy is further revealed by considering one of the dot points under the Principle of ‘Quality’ on page 11 of the existing National LGBTI Ageing and Aged Care Strategy:
“All aged care staff, from administration to management, understand the life experiences and needs of LGBTI people and are equipped with the necessary tools to provide LGBTI-inclusive practice.”
Prima facie, this statement is commendable – that all people providing aged care services ‘understand the life experiences and needs of LGBTI people’.
But, looked at in another way, it is absurd to declare all staff should ‘understand the life experiences and needs of LGBTI people’ when we continue to permit some Commonwealth-funded aged care services to discriminate against staff who themselves have life experience as a member of the LGBTI community (and who would therefore already have many of ‘the necessary tools to provide LGBTI-inclusive practice’).
Overall, then, I believe that ‘quality’ is a worthy goal to aspire to, and, just as importantly, that it should be delivered by the best workforce possible, irrespective of their sexual orientation or gender identity. This means removing the ‘right’ of some Commonwealth-funded aged care services to discriminate against employees on the basis of fundamentally irrelevant factors.
6.2 What issues or specific actions do you believe should be included in the LGBTI Aged Care Action Plan that will be developed under the Diversity Framework?
As noted in my earlier answer to question 5.3, I believe that a key problem that must be addressed is the ongoing ability of some Commonwealth-funded aged care services to discriminate against LGBTI employees. This undermines the ability of these organisations to provide a service that is fully inclusive of LGBTI people, as well as limiting the quality of their workforce.
This problem should be addressed by the Commonwealth Government, by amending section 37 of the Sex Discrimination Act 1984 to ensure that Commonwealth-funded aged care services cannot discriminate against LGBTI employees (and contract workers), in addition to the existing protections for LGBTI people accessing those services.
Such an amendment should be welcomed by organisations across the aged care sector, including those run by religious organisations, because it would help ensure these services are provided by the best possible workforce, and not the best possible cisgender heterosexual workforce.