On Tuesday morning, Australian news sites and social media feeds alike trumpeted the US Supreme Court decision to protect lesbian, gay, bisexual and transgender (LGBT) employees against discrimination.
As with too many issues of social justice, however, it seems our ability to see discrimination clearly is much better from across the vast Pacific Ocean than it is at home.
I wonder how many of those who shared that welcome news are aware the Fair Work Act here does not protect trans, gender diverse and intersex employees against adverse action and unlawful termination?
That’s because the relevant provisions of our industrial law (sections 351 and 772 of the Fair Work Act 2009 (Cth)) cover ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but not gender identity or sex characteristics (intersex status).
The consequence of this exclusion is that trans, gender diverse and intersex employees who are subjected to abuse at work, or even dismissed, on the basis of who they are cannot make a complaint to the Fair Work Commission.
This lack of protection is particularly harmful given these are populations that already experience low rates of employment.
A recent survey by Equality Australia found that, while the proportion of LGBTIQ+ people aged 25 to 64 years who were unemployed or looking for work increased from 6% pre COVID-19 to 10.8% post COVID-19, for trans and gender diverse people specifically it rose from an already-high 10.5% to a shocking 15.2% now.
That’s almost 1-in-6 trans and gender diverse adults unemployed today, with the potential to go much, much higher in coming months.
I raised the lack of protection for trans, gender diverse and intersex employees with the Turnbull Government in 2018, with then-Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, rejecting calls to address this legislative gap, instead pointing to general discrimination protections in the Sex Discrimination Act 1984 (Cth) (SDA).
And it’s true that gender identity and intersex status are covered in the SDA – but this ignores the fact complaints to the Australian Human Rights Commission can take much longer to conciliate, and enforcing them may require action in the Federal Court or Federal Circuit Court, at the risk of significant costs orders against the complainant.
In contrast, arbitration by the Fair Work Commission can be much quicker, and it is generally a ‘no-costs’ jurisdiction.
That’s exactly why sex, sexual orientation, marital status, family responsibilities and pregnancy are covered under *both* the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits their circumstances.
Women, and even lesbians, gay men and bisexuals, discriminated against in the workplace can exercise that choice. As can employees discriminated against on the basis of race, disability and age, who are all protected by their respective federal discrimination Acts, as well having access to the Fair Work Commission.
That choice is denied to some of the most vulnerable members of our community. Trans, gender diverse and intersex employees are confronted by the possibility of longer wait times, and potentially higher costs, to address the same type of dispute.
Of course, a lot has happened in the two years since Minister Laundy refused to fix this problem. The economic crisis brought on by coronavirus means that the Government, business and unions are now involved in consultations on how to reform the industrial relations regime to get people back to work.
This is an ideal opportunity for Prime Minister Morrison, and Attorney-General Porter – who is also the Minister for Industrial Relations – to help trans, gender diverse and intersex Australians into employment, and to protect them against possible mistreatment once there.
This is obviously not the only employment-related discrimination provision that needs updating (hello LGBT teachers in religious schools outside Tasmania and the ACT, LGBT employees in religious aged care homes and other service delivery organisations outside Tasmania, bisexual employees in the NSW public service, and non-binary and intersex employees in the NSW, Victorian, Queensland, WA and NT public services, too – see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).
Indeed, Australia’s LGBTI anti-discrimination regime could perhaps be described as a ‘patchwork’ – except it is still missing far too many patches and for too many of us it simply doesn’t work.
But it is possibly the problem that is most easily fixed. It would only take a couple of quick legislative stitches to ensure trans, gender diverse and intersex people finally enjoy the cover of the Fair Work Act.
As indicated above, the Morrison Government is currently engaged in consultation with business and unions about its coronavirus-related industrial relations reforms. Which means now is the perfect time to ask for the Fair Work Act 2009(Cth) to be amended to cover gender identity and sex characteristics (intersex status). Why not start with the AG himself:
The Hon Christian Porter MP
Attorney-General and Minister for Industrial Relations
PO Box 6022
House of Representatives
Canberra ACT 2600
(02) 6277 7300
Update 21 June 2020:
It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.
However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view the only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.
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