The Jobs and Skills Summit and LGBTIQ Australians Part 2

Last Sunday, I posted about the upcoming Jobs and Skills Summit, and the inclusion (or, at that stage, exclusion) of issues affecting LGBTIQ workers.

This included a letter to Prime Minister Albanese, Treasurer Chalmers, and seven of their ministerial colleagues, calling on them to include consideration of two matters in particular that affect LGBTIQ people in the workplace:

  • The absence of explicit protections for trans, gender diverse and intersex employees in the Fair Work Act 2009(Cth), and
  • The breadth of exceptions, in the Sex Discrimination Act 1984 (Cth) and elsewhere, allowing religious organisations to discriminate against employees on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money.

Since then, the issue of potential LGBTIQ exclusion from the Jobs and Skills Summit has been picked up by my friends at Just.Equal Australia, as well as being reported on by:

I also received the below, generic response from the Treasurer’s office, which, to be honest, did not inspire much confidence that my concerns, and the concerns of my community, were being taken seriously:

Dear Alastair,

Thank you for your email and attached correspondence about the Albanese Government’s Jobs and Skills Summit, which is scheduled to held over the 1st and 2nd of September.

The Jobs and Skills Summit will bring together around 100 representatives including from unions, employers, civil society and governments, to address our shared economic challenges.

The outcomes of the Summit will inform the Employment White Paper, which will be a shared vision and comprehensive blueprint for the future of Australia’s labour market.

Although Summit attendance will be limited and invite only, Treasury will be opening a submission process to collect insights and perspectives from the wider community later in 2022.

You can find out more information about the Summit and the White Paper, including up to date advice on when public submissions will be opened, by visitinghttps://treasury.gov.au/employment-whitepaper/jobs-summit.

Again, thanks for taking the time to share your thoughts and views on the above which will be brought to the attention of the Treasurer’s ministerial team.

Best wishes

[Name withheld], on behalf of the Hon. Jim Chalmers MP

Office of the Hon. Jim Chalmers MP | Treasurer of Australia and Federal Member for Rankin

Which made it a pleasant surprise to read, via Out in Perth, the Treasurer Jim Chalmers confirm that LGBTIQA+ issues would indeed be on the agenda at the conference:

‘We recognise that many LGBTIQA+ Australians often face a range of unique challenges when it comes to secure employment.

‘These are exactly the issues that we hope to address through our Jobs and Skills Summit.

‘That’s why removing barriers to employment and workforce participation are central themes of our Jobs and Skills Summit. Our aim is to bring people together around our big economic challenges to ensure more Australians can get a secure, well-paid job.’

Of course, just because LGBTIQ issues might actually be discussed, does not mean the Summit itself, or the Government afterwards, will recommend or commit to taking action to fix the problems which lead to workplace discrimination against, and exclusion of, LGBTIQ people.

I should also note I have not had a response from Albanese, Chalmers or any of the other seven Ministers addressing the substantive concerns raised by my letter.

In which case, the push continues to ensure the Fair Work ActSex Discrimination Act and other relevant laws are amended so that LGBTIQ workers are judged on the basis of their ability, not their sexual orientation, gender identity or sex characteristics.

In that context, today I have sent the below emails to two of the primary non-Government voices that will be represented at the Jobs and Skills Summit: ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott.

Hopefully their assistance will help give voice to the need to legislate better protections for LGBTIQ workers in Australia.

*****

Sunday 28 August 2022

Sally McManus

Secretary

Australian Council of Trade Unions

Dear Ms McManus

Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice advocating for the interests of Australian workers.

In particular, I am writing, both as a union member for two decades, and as a leading advocate for my community, to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

These include:

  • Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
  • Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.

I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more detail about these issues, and the compelling reasons why changes must be made to both.

I note both your own strong personal support, and the strong support of many unions and members of the ACTU, to LGBTIQ rights over the past decade, including through the campaign for marriage equality.

I look forward to your support once again, on Thursday and Friday of this week, and over the following months, for the interests of LGBTIQ workers.

Because I am confident that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.

Sincerely

Alastair Lawrie

*****

Sunday 28 August 2022

Jennifer Westacott

Chief Executive Officer

Business Council of Australia

Dear Ms Westacott

Please support reforms to protect LGBTIQ workers at the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, at which you will be a key voice in central debates around economic and industrial relations reforms.

In particular, I am writing as a leading advocate for my community to ask you to support important reforms to protect the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

These include:

  • Reforms to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against adverse action and unlawful termination. This could be achieved, easily, by adding gender identity and sex characteristics as protected attributes in relevant sections where categories such as race, sex, disability, age and even sexual orientation are already covered.
  • Reforms to the Sex Discrimination Act 1984 (Cth) and other Commonwealth and State and Territory anti-discrimination laws to remove the special privileges granted to religious organisations allowing them to discriminate against workers on the basis of their sexual orientation and/or gender identity, including in the delivery of public services using taxpayers’ money. This problem is especially acute in what is described in the Issues Paper as the ‘care economy’ and their removal would, I believe, lead to more LGBTQ people entering professions like education, disability services and aged care.

I attach with this correspondence a letter which was sent to Prime Minister Albanese, Treasurer Chalmers and seven of their ministerial colleagues, that provides more details about these issues, and the compelling reasons why changes must be made to both.

Indeed, I note that you made some of the same arguments for better workplace inclusion in your speech on 27 May this year at the 2022 Australian LGBTIQ Inclusion Awards:

‘[T]oday we are here to celebrate and applaud the excellence of employers and their teams for their commitment to advancing inclusion and diversity.

It’s the right thing to do.

And not just that – it’s also smart business.

When every person can be their best selves at work:

  • They’re happier
  • They’re more productive
  • They’re more creative
  • They’re more loyal, and
  • They’re more likely to stay with their current employer.

Doing the right thing is a win-win…

I do not believe that any person should be made to feel excluded.

I do not believe that any person should be made to feel less than they are.

I do not believe that anyone’s personal struggle should be used as a political football.

So today I want to spend the bulk of my time apologising.

I want to apologise to our transgender colleagues.

I want to apologise:

  • For the hurt you have endured
  • For the cruelty you have been subjected to, and
  • For the fundamental misinformation and unfairness that has shrouded the discussion over the last year, but particularly during the election.’

You went on to acknowledge:

‘I understand the fear and worry when you turn up to work and every single new encounter is potentially:

  • A rejection
  • The loss of your employment status, or
  • The loss of your job.

I understand that there is only one choice you have to make.

It is not a flippant or superficial lifestyle choice.

Instead, it’s a difficult and often agonising acceptance to either be yourself or to pretend to be someone else.’

The upcoming Jobs and Skills Summit is another opportunity to demonstrate your commitment to improving the lives of trans and gender diverse Australians, who are affected by both the lack of explicit protections under the Fair Work Act, and the broad special privileges granted to religious organisations under the Sex Discrimination Act.

I look forward to you building on your public apology in May by supporting essential reforms to both these laws later this week.

Because I am confident, based on your speech, that you agree trans, gender diverse and intersex workers should have the same Fair Work Act protections as any employee. And that LGBTQ workers should be judged on their ability, rather than their sexual orientation and/or gender identity.

Sincerely

Alastair Lawrie

*****

ACTU Secretary Sally McManus and Business Council of Australia CEO Jennifer Westacott will play a key role in whether the upcoming Jobs and Skills Summit supports much-needed law reform to protect the rights of LGBTIQ workers.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

The Jobs and Skills Summit and LGBTIQ Australians

The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.

While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.

The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.

As always, I will publish any responses received.

*****

Prime Minister Anthony Albanese

Treasurer Jim Chalmers

Attorney-General Mark Dreyfus

Minister for Employment and Workplace Relations Tony Burke

Minister for Health and Aged Care Mark Butler

Minister for Aged Care Anika Wells

Minister for Education Jason Clare

Minister for Social Services Amanda Rishworth

Minister for the NDIS Bill Shorten

Sunday 21 August 2022

Dear Prime Minister Albanese and other Ministers

Please include LGBTIQ workers in the Jobs and Skills Summit

I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.

I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]

However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.

Specifically, page 2 of that document states:

‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’

There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.

This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.

For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:

‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’

The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.

These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’

I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.

  1. Protect transgender, gender diverse and intersex workers under the Fair Work Act

Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.

This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘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 omit the protected attributes of gender identity and sex characteristics (intersex status).

In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.

Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]

I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]

‘Aligning the Fair Work Act and Sex Discrimination Act

Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’

Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.

This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.

Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:

‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’

is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.

Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.

2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers

That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.

In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:

‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’

And the associated questions on page 7:

  • ‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
  • ‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’

And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’

Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).

Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).

The effects of these exceptions are all-too-real for LGBTQ workers.

Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.

But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.

There are a range of serious consequences which flow from this discrimination, including:

  • For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
  • For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
  • For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
  • This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
  • It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
  • Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.

For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.

And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.

Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.

Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:


[i] Prime Minister and Treasurer Joint Media Release, ‘Jobs and Skills Summit to be Held in September’, 11 July 2022, available at: https://www.pm.gov.au/media/jobs-and-skills-summit-be-held-september

[ii] Department of the Treasury, ‘Jobs and Skills Summit Issues Paper’, 17 August 2022, available at: https://treasury.gov.au/publication/2022-302672

[iii] Ingird Bretherton et al, ‘The Health and Well-Being of Transgender Australians: A National Community Survey’, LGBT Health Vol 8, No 1, 12 January 2021, available at: https://www.liebertpub.com/doi/10.1089/lgbt.2020.0178

[iv] See for example: Unfairness in the Fair Work Act.

[v] See: Pathetic and Antipathetic, in Equal Measure.

[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.

[vii] ALP 2021 National Platform, page 137, available at: https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf

[viii] This is defined in section 4(1) of the Equal Opportunity Act 2010 (Vic) as:

‘sex characteristics means a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

NSW Equality Bill Submission

4 July 2022

Alex Greenwich

Member for Sydney

Via email: sydney@parliament.nsw.gov.au

Dear Mr Greenwich

Submission re Equality Bill Consultation

Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.

Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.

As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.

This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.

If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.

In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.

LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)

The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).

However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:

1. Replace homosexuality with sexual orientation

NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.

This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

2. Replace transgender with gender identity

NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.

The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.

3. Add a new protected attribute of sex characteristics

Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.

A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):

‘sex characteristics means a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

4. Add new protected attributes of sex work, and genetic characteristics

I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.

5. Remove special privileges for private educational authorities

The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.

This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.

There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.

In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]

6. Significantly narrow special privileges for religious organisations

In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.

While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.

Both para s56(c) and 56(d) should be repealed entirely.[ii]

7. Remove special privileges for faith-based adoption services

Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.

This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.

S59A should be repealed entirely.

8. Remove the specific transgender exception in superannuation

Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).

Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.

9. Significantly narrow the specific transgender exception in sport

Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.

This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.

At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.

Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).

10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics

Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.

I also support introducing civil prohibitions against vilification on the basis of sex characteristics.

11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)

If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.

Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)

As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity. 

This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.

In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.

That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.

There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.

I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.

One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.

This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.

It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.

Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).

However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.

Ending non-consenting surgeries and other medical interventions on intersex children

The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.

In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.

Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.

On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:

‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.

‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].

I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.

Banning sexual orientation and gender identity conversion practices

The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).

These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.

In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).

Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).

My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.

However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.

Legalising commercial surrogacy in NSW

This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.

However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).

The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.

More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).

In this context, my personal view is that commercial surrogacy should be legalised in NSW.

There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.

However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.

The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.

Sincerely

Alastair Lawrie

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:


[i] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.

[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.

[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.

This is the easiest LGBTIQ election promise a political party could make. But the Morrison Government still probably won’t commit to it.

Problem: Transgender and intersex workers are not explicitly protected under the Fair Work Act 2009 (Cth).

While discrimination on the basis of sexual orientation, gender identity and intersex status are all prohibited under the Sex Discrimination Act 1984 (Cth), only sexual orientation is included as a relevant attribute in the Fair Work Act for the purposes of protections against ‘adverse action’ (section 351(1)), and ‘unlawful termination’ (section 772(1)(f)), as well as in sections covering the contents of awards (section 153) and enterprise agreements (section 195), and the functions of the Fair Work Commission (section 578(c)).

This means that while the ability of lesbian, gay and bisexual workers to bring complaints to the Fair Work Commission (FWC) is certain, there is significant doubt about whether trans, nonbinary and intersex employees can do the same.

In practice, a trans worker who is mistreated in the workplace because of their gender identity, or an intersex employee who is fired on the basis of their sex characteristics, may be unable to have their issue resolved quickly and at low cost via the FWC, and instead be forced to go through a much less timely, and potentially more expensive, complaint to the Australian Human Rights Commission (and then in federal court after that).

This is a completely unjustified discrepancy in the rights of LG and B Australians on one hand, and transgender and intersex people on the other, and it must be resolved.

Solution: Amend the Fair Work Act to explicitly protect transgender and intersex workers.

Simple, right? Well, it certainly should be.

Sadly, however, the Liberal/National Government has proven itself to be completely uninterested in doing anything to address this most straightforward of problems.

I have been raising the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act since Malcolm Turnbull was Prime Minister. And on multiple occasions since then, to multiple Attorneys-General.

Not only have they refused to take action, but last September current Attorney-General Michaelia Cash, and the Morrison Government generally, voted *against* amendments to the Fair Work Act which would have, at a minimum, brought it into line with Sex Discrimination Act (SDA).

What makes that vote even more disappointing is the then Opposition, under Tony Abbott, had actually voted in favour of protecting transgender and intersex people in the SDA back in 2013 – meaning the Liberal/National Coalition has gone *backwards* in its support for these groups in the subsequent eight years.

In any event, with the election expected to be called today (and at the latest by Monday 18 April), it is clear the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act will not be addressed this term.

In which case, I think we should ensure that finally addressing this problem is made an election issue for the upcoming poll (on May 14 or 21).

What policy commitments do we want?

From my perspective, any election commitment on this issue should comprise four, inter-related parts.

First, a commitment to ensure the Fair Work Act explicitly covers trans, nonbinary and intersex workers.

Second, a commitment to use best practice terminology to do so.

This includes adding a protected attribute of ‘gender identity’, using the definition in section 4 of the Sex Discrimination Act (‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth’) as a starting point, and finalised in consultation with trans community organisations.

However, while the SDA currently uses the protected attribute ‘intersex status’ (defined in section 4 as ‘the status of having physical, hormonal or genetic features that are (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male’) this is no longer supported by the intersex community, at least in part because it has been interpreted by some as relating to identity rather than biology.

Instead, the best practice terminology is now ‘sex characteristics’, as called for in the historic March 2017 Darlington Statement, and most recently defined in the Equal Opportunity Act 2010 (Vic) as:

‘a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

The definition of sex characteristics should also be finalised in consultation with intersex community organisations, particularly Intersex Human Rights Australia.

Third, if the attribute of ‘sex characteristics’ is added to the Fair Work Act, the Parliament should use the same opportunity to update the Sex Discrimination Act, replacing the protected attribute of intersex status with sex characteristics.

Fourth, a commitment to make these reforms within the first 12 months of the next Parliamentary term.

This discrepancy has existed since the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, in June of that year.

Which means by mid-2023 it would have been a full decade of trans, nonbinary and intersex workers having less clear, and potentially lesser, workplace rights than lesbian, gay and bisexual employees.

That is far too long for workers to wait for what are basic protections, making a request that it be fixed in the next year entirely reasonable.

In this context, today I sent the below emails to the Government, Opposition and Greens.

The email to the Government highlights their rejection of amendments to the Fair Work Act in September last year, and asks them to take concrete action to protect trans, nonbinary and intersex workers as a matter of urgency.

The email to the Opposition welcomes their vote to support adding ‘intersex status’ to the Fair Work Act last September, while calling on them to go further, and commit to instead add the protected attribute of ‘sex characteristics’ if they form Government.

Finally, the email to the Greens thanks them for their leadership on this issue to date (it was their amendments that were voted on last year) and urges them to continue to prioritise this reform in the upcoming term of Parliament.

*****

Senator the Hon Michaelia Cash

Attorney-General

Via email: senator.cash@aph.gov.au

10 April 2022

Dear Senator Cash

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, it was extremely disappointing that you, and other Government Senators, voted to reject straight-forward amendments to address this discrepancy in September 2021, thus leaving the position of trans, nonbinary and intersex workers unclear.

In light of the upcoming federal election, I call on you, and the Liberal/National Coalition, to unequivocally commit to fixing this problem as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with the actions of the then Abbott Opposition in 2013 (of which you were a member), to support the prohibition of discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Morrison Liberal/National Government.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

The Hon Mark Dreyfus QC MP

Shadow Attorney-General

Via online contact form 

10 April 2022

Dear Mr Dreyfus

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, the ALP’s support for amendments in September 2021 to add gender identity and intersex status as protected attributes in the Fair Work Act was obviously welcome, although it was disappointing this did not extend to supporting the best practice terminology of sex characteristics.

In light of the upcoming federal election, I call on you, and the Australian Labor Party, to commit to protecting trans, nonbinary and intersex workers as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with, and build on, one of the major achievements of the most recent Labor Government, the passage of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (during your term as Attorney-General).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Albanese Labor Opposition.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Senator Janet Rice

Australian Greens

Via email: senator.rice@aph.gov.au

10 April 2022

Dear Senator Rice

Lack of explicit protections for trans, nonbinary and intersex workers under the Fair Work Act 2009 (Cth)

Thank you for your ongoing leadership on this issue in the Commonwealth Parliament.

This includes regularly raising the lack of explicit protections for transgender and intersex employees in the Fair Work Act 2009 (Cth) during Senate Estimates hearings.

Most importantly, thank you for introducing amendments to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in September last year which, at best, would have added gender identity and sex characteristics as protected attributes to the Fair Work Act or, at a minimum, would have included gender identity and intersex status instead.

As you know, I shared your disappointment when neither set of amendments was successful.

However, I also share your passion to ensure this work is finally completed.

For your information, and in light of the upcoming federal election, this morning I have written to both the Attorney-General and Shadow Attorney-General calling on the Government and Opposition respectively to promise the following:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

Ideally, both major parties will commit to protecting the rights of trans, nonbinary and intersex workers, and this reform will be passed quickly and on a bipartisan basis.

However, in the event that neither of the major parties is willing to make these promises, or that they do but do not follow through on them with appropriate and timely action, I urge you to continue fighting on this issue.

In particular, if no amendments are forthcoming by mid-2023, I call on you to reintroduce your amendments to the Fair Work Act either as part of a relevant legislative package, or via a private members Bill.

I look forward to receiving your response to this correspondence.

As with my emails to the Government and Opposition, please note that, as your response on the above will be in the public interest, I will publish the contents of any correspondence I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Update, Sunday 8 May 2022:

On Friday (6 May) I received the following response from Greens Senator, and LGBTIQA+ spokesperson, Janet Rice:

Dear Alistair Lawrie

Thank you for your correspondence of 10 April 2022, in relation to improvements to antidiscrimination legislation, in order to protect members of LGBTIQA+ communities.
I would like to thank you for your tireless and important advocacy on such important issues, and in particular the legal expertise you have brought to issues which have such crucial importance for people’s lives.

Let me re-affirm the Greens’ commitment to fighting for LGBTIQA+ rights, as set out in our policy.

We will continue to advocate for the necessary changes to the Fair Work Act 2009 to ensure that workers who are trans or have intersex variations are protected on the same basis as other groups. That should include appropriate definitions in relation to gender identity and sex characteristics, developed in consultation with relevant communities. Those changes should also be accompanied by relevant updates to the Sex Discrimination Act 1984 as needed.

As you are aware, the Greens have a significant opportunity in this Parliament to achieve balance of power, potentially in both the House of Representatives and the Senate. We will continue to advocate as forcefully as we are able to, for these changes and others to protect the rights of LGBTIQA+ people.

Yours sincerely

Senator Janet Rice
Australian Greens LGBTIQA+ spokesperson

This is obviously encouraging, including commitments to advocate for the introduction of gender identity and sex characteristics as protected attributes in the Fair Work Act, with definitions to be developed in consultation with trans and intersex communities.

Disappointingly, I am yet to receive any response from either Senator Cash on behalf of the Government, or Mark Dreyfus on behalf of the Australian Labor Party.

Today I have written again to both, asking for any response to be provided by Sunday 15 May, so that they can be published prior to the election. I will obviously update this post if and when any such response is received.

*****

Update Wednesday 18 May:

Well, the update is really that there is nothing to update.

Unfortunately, despite writing again to both the Attorney-General Michaelia Cash and her Shadow Mark Dreyfus, I have received no response from either the Morrison Liberal/National Coalition, or the Albanese Labor Party. Which is perhaps not surprising in the case of the former (given they voted against protecting trans, gender diverse and intersex workers in the Fair Work Act in September last year), but is more disappointing in the case of the latter given they actually supported including gender identity and intersex status as protected attributes at a minimum (although need to go one step further by supporting the best practice terminology of sex characteristics).

I will of course update the post further if any response is received between now (COB Wednesday) and the opening of polls on Saturday morning.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

Commonwealth Attorney-General Michaelia Cash and Shadow Attorney-General Mark Dreyfus

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

LGBTIQ Law Reform Priorities for 2022

The next 12 months will be important in the history of LGBTIQ law reform in Australia.

There is the genuine possibility of long-overdue progress finally being made on key LGBTIQ human rights issues, at least in some jurisdictions.

At the same time, there is a real risk rights will be stripped away from our community, under Commonwealth law, in NSW and potentially elsewhere.

This post discusses five LGBTIQ law reform issues which, in my view, must be high priorities in 2022.

Please note before we start that a) they are *not* listed in order of priority and b) this list is by no means exhaustive – there is still a long way to go on the road to genuine legal and substantive equality for lesbian, gay, bisexual, transgender, intersex and queer Australians.

  1. Stopping the Commonwealth Religious Discrimination Bill

The Morrison Government introduced the Religious Discrimination Bill 2021 into Commonwealth Parliament at the end of last year, and will attempt to pass it before the federal election in May.

It must be stopped before it inflicts significant harm on women, LGBT people, people with disability and people of minority faiths, among many other members of the Australian community.

The Bill takes away existing protections under all Commonwealth, state and territory anti-discrimination laws, including the best practice Tasmanian Anti-Discrimination Act 1998, in order to allow offensive, humiliating, insulting and ridiculing comments, as long as they are motivated by religious belief.

This will obviously include legal protection for a wide range of demeaning and derogatory speech that is homophobic, biphobic and transphobic.

The Bill also introduces ‘religious exceptions’ that are far broader than any other Commonwealth, state and territory anti-discrimination law, both in the excessive scope of the organisations covered, and by adopting a test to determine whether these organisations are allowed to discriminate that is much, much more lenient than any other law.

The people at most risk are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist employees of publicly-funded religious schools, hospitals, aged care facilities, housing and disability service providers.

However, these extraordinary exceptions will also be used to discriminate against LGBT students and teachers in religious schools. This discrimination will be done ‘under the guise of religious views’ – on the basis of a student’s or teacher’s religious beliefs about sexual orientation and gender identity, rather than on those attributes directly – but the outcome is still the same: LGBT kids and workers being legally discriminated against.

To find out more about the serious threat posed by the Religious Discrimination Bill, and some simple actions you can take to help stop it, check out: Why the Religious Discrimination Bill must be rejected (in 1000 words or less).

2. Ending coercive surgeries on intersex children

In my view, the worst human rights violations currently occurring against any part of the Australian LGBTIQ community are coercive surgeries and other non-consensual medical interventions on children born with variations in sex characteristics.

There is no justification for the ongoing contravention of the right to bodily integrity for intersex children.

Nor is there any excuse for the fact that, as at February 2022, no Australian Government has legislated to ban these human rights abuses. Especially when ending these practices was first recommended by a bi-partisan Senate Committee way back in October 2013.

Thankfully, 2022 might be the year progress is finally achieved, with the ACT Government committing to introduce legislation in the first half of the year. The Victorian Government has also promised to end these practices, although it is unclear whether they will take action before the state election in November 2022 (and would be incredibly disappointing if they didn’t).

There have been reports in other jurisdictions, including a 2020 Tasmanian Law Reform Institute Inquiry report, and a 2021 report from the Australian Human Rights Commission. But, really, the time for reports is over. It’s time for all states and territories, as well as the Commonwealth Government, to take concrete steps to end these human rights violations.

To stay up to date, follow Intersex Human Rights Australia on twitter and facebook and check out their website where you can donate if you have the capacity.

3. Removing barriers to identity documents for trans and gender diverse people

In 2022, there are still two Australian jurisdictions that require transgender people to have genital surgery in order to access birth certificates and other identity documents which reflect their gender identity: New South Wales and Queensland.

One other jurisdiction, Western Australia, requires transgender people to have physical medical treatments before updating their identity documents.

This situation is simply not good enough.

Trans and gender diverse people must be allowed to update their birth certificates on the basis of self-identification alone, without the need for surgery or other physical medical treatments, and without the need for doctors or other medical gate-keepers like counsellors or psychologists to ‘approve’ their identity.

And obviously all jurisdictions must provide recognition for gender identities beyond the binaries of male and female.

In good news, the Queensland Government has promised to take action on this issue early this year. While the Western Australian Government is sitting on a 2018 WA Law Reform Commission report which recommended sweeping changes to their laws.

Meanwhile in NSW? Nothing. No signs of progress. At all. Which will be incredibly embarrassing in February and March 2023, as Sydney plays host to World Pride, with what will likely be the worst birth certificate laws in the country.

For more on this subject, see: Did you know? Trans people in NSW and Queensland still require surgery to update their birth certificates.

4. Stopping Mark Latham’s anti-trans kids Bill

NSW is also the site of one of the worst attacks on LGBTI rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

This legislation would effectively erase trans and gender diverse children from classrooms and schoolyards across the state. Teachers and principals would be liable to be dismissed simply for acknowledging the existence of trans and gender diverse people, while the kids themselves would be left completely on their own, exposed to bullying, and without the life-saving support of school counsellors.

Other LGBT students would also suffer, with the Bill including a provision based on the infamous section 28 from Thatcher-era Britain, which harmed a generation of LGBT kids before being abandoned two decades ago. And there’s an offensive and stigmatising definition of intersex in the Bill, too.

A Committee chaired by Mark Latham himself recommended core parts of the Bill be implemented as policy in NSW (with other recommendations going even further, such as banning trans girls from using bathrooms matching their gender identity). Disappointingly, all three Coalition MPs, and one of the two Labor MPs, on that Committee, supported these recommendations.

The NSW Government, and new(ish) Premier Dominic Perrottet, must respond to this Committee report by 7 March (ie the Monday after Mardi Gras). There is a very real risk NSW will introduce changes this year that would not look out of place in Republican-heartland USA. This disgusting transphobic attack on vulnerable kids must be resisted.

For more on this subject, see: I Stand with Trans Kids, and Against Mark Latham.

5. Fixing Australia’s broken LGBTI anti-discrimination laws

Rather than simply defending our existing anti-discrimination laws from attack (see the Religious Discrimination Bill, above), we need to also take urgent action to address many of the serious short-comings of Australia’s current LGBTI anti-discrimination framework.

Indeed, both the Commonwealth Sex Discrimination Act 1984, and the laws of most – although not all* – states and territories should be significantly improved. This includes:

Commonwealth

The Sex Discrimination Act 1984 (Cth), should be amended to:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics, and
  • Create a Discrimination Commissioner with responsibility for sexual orientation, gender identity and sex characteristics.

The Fair Work Act 2009 (Cth) must also be amended to explicitly cover gender identity and sex characteristics – currently, it only mentions sexual orientation, meaning protections for trans, gender diverse and intersex employees are not guaranteed.

New South Wales

The Anti-Discrimination Act 1977 (NSW) is the worst LGBTI anti-discrimination law in Australia, and needs significant modernisation, including:

  • Protect bisexual people against discrimination by replacing the protected attribute of ‘homosexuality’ with ‘sexual orientation’ (NSW is the only jurisdiction in Australia that currently does not protect bisexuals)
  • Protect non-binary people against discrimination by replaced the protected attribute of ‘transgender’ with ‘gender identity’
  • Protect intersex people against discrimination by introducing a protected attribute of sex characteristics
  • Remove specific exceptions which allow all private schools, colleges and universities (religious and non-religious alike) to discriminate against LGBT students and staff
  • Remove specific exceptions which allow discrimination by religious adoption agencies
  • Remove the general religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, and
  • Ensure prohibitions on vilification apply to all of sexual orientation, gender identity and sex characteristics.

Victoria

Recent amendments to the Equal Opportunity Act 2010 (Vic), which have yet to take effect, mean many problems there have already been addressed (although the Commonwealth Religious Discrimination Bill could strip away hard-won protections from LGBT teachers and other staff in religious schools, before they even commence).

However, the major outstanding item of business is the introduction of prohibitions on anti-LGBTI vilification (something which has already been considered by a Parliamentary Committee, and the Government has committed to do, but is awaiting implementation).

Queensland

The Anti-Discrimination Act 1991 (Qld) could be improved in several key areas, including:

  • Introduce a protected attribute of sex characteristics, for both discrimination and anti-vilification
  • Update the definition of ‘gender identity’ to ensure non-binary people are protected against discrimination
  • Amend the religious exceptions applying to LGBT teachers and other staff in religious schools, to remove the ‘Don’t Ask, Don’t Tell’ approach and replace it with stronger protection (noting that LGBT students are already protected)
  • Remove the general religious exceptions which allow other religious organisations to discriminate against LGBT workers), and
  • Remove the specific exception which allows discrimination against transgender employees where the job involves working with children (s28(1), which is particularly abhorrent).

Fortunately, the Queensland Human Rights Commission is currently undertaking a review of discrimination protections under the Act, while a Parliamentary Committee has recently recommended updating its anti-vilification protections.

Western Australia

The Equal Opportunity Act 1984 (WA) is probably second only to NSW in terms of worst LGBTI anti-discrimination legislation in Australia. It desperately needs amendments, including:

  • Protect intersex people against discrimination by adding a protected attribute of sex characteristics
  • Replace the current extremely-limited transgender protections (which only cover people who have had their gender identity recognised by the Government, and which is therefore restricted to people who have had genital surgery) with the much broader protected attribute of ‘gender identity’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

The Western Australian Law Reform Commission is currently undertaking a review of the Equal Opportunity Act.

South Australia

The Equal Opportunity Act 1984 (SA) could be improved in a number of ways, such as:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’, while amending its religious exceptions to ensure they do not permit discrimination on this attribute
  • Clarify that the religious exceptions are not intended to allow discrimination against LGBT students in religious schools
  • Remove other religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

Australian Capital Territory

The Discrimination Act 1991 (ACT) is the second best LGBTI anti-discrimination law in Australia. There is one major reform outstanding – removing the ability of religious organisations, other than schools, to discriminate against LGBT workers and peoples accessing their services (noting that LGBT students, teachers and other staff in religious schools are already protected against discrimination).

Thankfully, the issue of religious exceptions is currently under review by the ACT Government.

Northern Territory

Unlike the ACT, the Anti-Discrimination Act (NT) has fallen well behind best practice, and requires significant updating to:

  • Replace the current definition of ‘sexuality’ (which erroneously includes ‘transsexuality’) with a protected attribute of ‘sexual orientation’
  • Protect trans and gender diverse people against discrimination by adding a protected attribute of ‘gender identity’
  • Protect intersex people against discrimination by adding a protected attribute of ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools (noting that LGBT students are already protected), and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

*Observant readers would note the Tasmanian Anti-Discrimination Act 1998 is not included in this list, because it is already close to best practice on these key points (protected attributes, religious exceptions and anti-vilification prohibition).

For more on this subject, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

Conclusion

In my opinion, these five LGBTIQ law reform issues should be high priorities in 2022. However, as well as being placed in no particular order, I would also reiterate this list is by no means exhaustive either.

Other important LGBTIQ law reform priorities include ensuring that states and territories other than Victoria and the ACT prohibit sexual orientation and gender identity conversion practices (including making sure the partial ban in Queensland is extended beyond health care settings).

Nor is law reform the only necessary pre-condition for substantive equality for LGBTIQ people, which must also be achieved through a variety of other measures, not least of which is funding (such as providing no-cost access via Medicare for gender identity-related health care, including full coverage of transition expenses).

Anyway, as with previous years, our agenda is big but our ambition, and determination, are bigger. Let’s get to work to make a better future for LGBTIQ Australians.

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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

No Cause for Celebration

Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.

Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.

The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.

With Queensland promising to amend their birth certificate laws, NSW will soon be the only jurisdiction in Australia requiring trans people to undergo genital surgery (which many don’t want, and some who do can’t afford) to update their identity documents.

While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.

Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.

In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.

Earlier this month, a NSW Parliamentary Committee recommended adoption of the core elements of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, more accurately known as his anti-trans kids Bill.

That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.

By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.

Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):

  • Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
  • Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
  • Out students who transition while at school to the parents of every other student in their year group.

These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.

In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.

It is, frankly, embarrassing. And no-one should be more embarrassed than Premier Gladys Berejiklian, who for 13 months has steadfastly refused to condemn, or even comment on, these proposed changes – all the while allowing Latham to chair the inquiry into his own Bill.

Her reluctance to publicly reject his anti-trans agenda has only allowed it to gather strength. Not only did all three Coalition MLCs on the Committee endorse its recommendations, but her own Parliamentary Secretary for Education declared his personal support for the anti-trans kids Bill earlier this year

The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.

And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.

As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.

Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.

If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?

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Pathetic, and antipathetic, in equal measure

Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’

Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.

That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]

As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.

Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:

‘gender identity has the same meaning as in the Sex Discrimination Act 1984.

intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]

And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.

It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.

*****

Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’

Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.

In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.

Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.

The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]

The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.

This amendment was a potential win for them. Almost 28 months into a maximum 36-month parliamentary term, it is increasingly likely the Government will not pass a single pro-LGBTI Bill before the next election (including a failure to introduce legislation to implement Scott Morrison’s since-broken promise to protect LGBT students in religious schools against discrimination).

If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.

Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.

*****

The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:

‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’

Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.

For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.

Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:

‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]

Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.

Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.

The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.

Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’

No. No, you don’t. If you did, you would have voted for these amendments.

*****

Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.

Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.

[A list that, from my perspective, would include (in no particular order):

  • Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
  • Defunding an evidence-based program against anti-LGBTI bullying in schools
  • Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
  • Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
  • Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]

It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.

This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’

Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.

And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.

As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.

In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.

The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.

How pathetic in their lack of principle, and basic decency.

How antipathetic to the human rights and dignity of their fellow Australians.

In roughly equal measure.

Morrison, Turnbull and Abbott, divided by political ambition but united in their pathetic, and antipathetic, approach to LGBTI rights.

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Footnotes:


[i] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.

[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.

Australian trans, gender diverse and intersex employees need better protection, too

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.

Take Action

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

Parliament House

Canberra ACT 2600

(02) 6277 7300

Online contact

Twitter: @cporterwa

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.

Untitled design-4

The US Supreme Court decision highlights the lack of Fair Work Act coverage of trans, gender diverse and intersex employees in Australia.

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Cooperative workplaces must be trans and intersex inclusive workplaces

The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.

 

Submissions are due by Friday 28 February 2020. The following is mine:

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.

 

I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

In this submission I will focus on the following questions posed in the paper:

2. To what extent do employees benefit from cooperative workplaces?

7. How does the Australian industrial relations system support and encourage cooperative workplaces?

10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …

e) Fair treatment policies and procedures.

 

From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.

 

If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.

 

Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.

 

Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).

 

For example, the adverse action provisions in sub-section 351(1) cover:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction, and
  • Social origin.

 

Note that this long list does not protect trans, gender diverse or intersex people.

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.

 

There are other exclusions too:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of 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.’

 

There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.

 

Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.

 

I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.

 

I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.

 

While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:

 

“The Sex Discrimination Act 1984 is the principal legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.”

 

Which, to be blunt, entirely misses the point.

 

First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.

 

Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.

 

Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.

 

Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.

 

With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.

 

Recommendation 1

The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the Sex Discrimination Act 1984:

‘Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

 

Recommendation 2

The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:

‘understanding sex characteristics as each person’s physical features relating to sex, including genital and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.

 

In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).

 

And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.

 

Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.

 

Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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What Gender Reveal Parties Actually Reveal

If the Germans hadn’t invented the term schadenfreude several centuries ago, we would have needed to create it to describe the most 21st century of phenomena: laughing at gender reveal fail videos.

These videos are (unintentionally) hilarious not just because when they go wrong, they go very wrong. With people coming up with increasingly intricate and in many cases bizarre scenarios to ‘stand out’, the potential for things to go awry has grown exponentially.

They are also deeply funny because the concept of a gender reveal party itself is inherently problematic, which means that laughing at the misfortunate of those involved is usually a guilt-free pleasure.

If you’re reading this and still think gender reveal parties are just a bit of harmless fun, perhaps it is useful to consider what exactly it is these parties are revealing – which is far more about the parent(s) than about their child(ren).

First, they reveal that some parents don’t seem to understand the difference between sex and gender.

Sex is biological (defined by the Oxford English Dictionary as ‘either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’).

On the other hand, gender is identity-based (with the Yogyakarta Principles defining gender identity as ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’).[i]

Given it is impossible to know a child’s gender identity before or at birth (and usually for years after that), this means these celebrations should at the very least be renamed ‘sex reveal parties’.

Second, they reveal that some parents don’t seem to understand that both sex and gender are much more complicated than just male and female.

At its very core, a gender reveal party is an attempt to place an unborn child (or children) into one of two boxes: boy or girl.

And yet, in 2019, we know that gender identity is a spectrum, and there is a wide range of other options, including non-binary.

We also know that some children will be ‘born with physical sex characteristics that don’t fit medical and social norms for female or male bodies’ (the definition of intersex from Intersex Human Rights Australia).[ii]

Gender reveal parties therefore deliberately exclude some of the beautiful diversity of the human experience.[iii]

Third, they reveal that some parents are willing participants in a reductivist view of gender.

Gender reveal parties simplify the concepts of male and female into blue and pink respectively, as though entire genders can be signified by, even summed up by, a colour. When there is obviously more diversity within genders, and more similarities across people of different genders, than such a basic dichotomy can hope to represent.

Somewhat amusingly, these colours are also the exact opposite of those from just a century ago. From US Ladies Home Journal in June 1918:

‘The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl.’

Mush less amusingly, while the colours have changed, some of those gender stereotypes remain and gender reveal parties tend to entrench, rather than question, them.

Based on these three factors, gender reveal parties can actually be harmful. By supporting a view that gender will match sex assigned at birth, they can make life much more difficult for trans and gender diverse children.

By raising expectations that babies will be born with sex characteristics that are exclusively male or female, they can erase intersex children (and even potentially increase pressure for unnecessary surgeries post-birth to ensure their bodies match these societal ‘norms’).

And by entrenching the notion that boys and girls are inherently different, and reinforcing stereotypes about how they will (or should) behave, gender reveal parties place artificial restrictions on all of us, and our behaviours.

It may sound like I am unsympathetic to the parents who hold gender reveal parties. I’m not, at least in part because most are simply replicating the actions of those around them (and those they follow on social media), and probably haven’t considered any of the issues described above. They are acting out of ignorance rather than malice.[iv]

I’m also sympathetic because, as a society, we seem to be placing an ever-greater emphasis on gender, certainly much more than I can remember as a child growing up in the 1980s. From unnecessarily gendered toys, to unnecessarily gendered toiletries, and even unnecessarily gendered grocery items, heightened expectations of ‘gender conformity’ are all around us – so it is perhaps only natural they will be felt most keenly by expecting parents.

The challenge then is what we can do to overcome these norms, especially the emerging norm that parents will hold gender reveal parties in the first place.

I have four suggestions to start, from the easiest to the most difficult:

  1. Don’t hold a gender reveal party

If you are having a child, simply refuse to have one of these ‘celebrations’. Which is easy for someone like me to say (a cis gay man who has decided, with his partner, not to have children, at least in part because of the climate emergency), so let’s move on…

  1. Don’t attend gender reveal parties

If you are invited to one of these ‘celebrations’, don’t attend. If people all stopped going, parents would stop holding them.

  1. Let the person know why you’re not attending

This is clearly more difficult than simply not turning up, especially because many of us prefer to avoid confrontation. But if we are to do the hard yards of ending this social norm, then we should take the time to explain to the person who has sent the invitation why you won’t be there.

  1. Stop asking ‘What are you having?’

Obviously, this is another degree of difficulty again, especially because this is something we’ve been conditioned to ask, usually first, when someone says they are pregnant (and something I have been guilty of, on more than one occasion).

But what does it actually matter? And aren’t there more interesting and/or important questions to ask, like ‘What are you looking forward to?’ ‘What are you nervous about?’ ‘Are you prepared?’ and ‘Is there anything I can do to help?’

For those having difficulty making this mental adjustment, consider thinking of it this way. When you are asking ‘What are you having?’ what you’re really asking is ‘What are your child’s sex chromosomes and/or genitalia?’ and ‘What gender do you currently intend to raise your child even though you cannot know now their eventual gender identity?’

Rationally, an expecting parent who knows the difference between sex and gender could also respond to the ‘What are you having?’ inquiry by saying that they’ll get back to the questioner in five, ten, 15 or even 20 years, when the child decides for themself.

Which brings me to the primary exception to my ‘no gender reveal parties’ stance: where trans and gender diverse people announce their own gender identity. This is truly something to celebrate, especially for those who’ve overcome years or even decades of transphobia from families, schools, and society in general.

[I suppose I would also make an exception for parents who hold a gender reveal party and then release a colour like green or brown and tell attendees that they’ll let their child determine their identity for themselves.]

Other than that, gender reveal parties are a social phenomenon that has risen to prominence incredibly quickly over the past decade – and hopefully will recede just as quickly in the early 2020s.

Indeed, that’s the view of the woman whose 2008 post is widely-credited as popularising ‘gender reveal parties’, Jenna Karvunidis. From NPR in July 2019:[v]

‘Plot twist! The baby from the original gender reveal party is a girl who wears suits,’ Karvunidis says. ‘She says ‘she’ and ‘her’ and all that, but you know she really goes outside gender norms’.

… Karvunidis says her views on sex and gender have changed, especially when she’s talking to her daughter.

‘She’s telling me ‘Mom, there are many genders. Mom, there’s many different sexualities and all different types,’ and I take her lead on that,’ Karvunidis says.

She says she does have some regrets and understands these parties aren’t beneficial to everyone.

‘I know it’s been harmful to some individuals. It’s 2019, we don’t need to get our joy by giving others pain,’ she says. ‘I think there’s a new way to have these parties.’

And that idea is as simple as just eating cake.

‘Celebrate the baby,’ she says. ‘There’s no way to have a cake cut into it, to see if they’re going to like chess. Let’s just have a cake.’

Which is a great idea. And then to eat any leftovers while watching videos of gender reveal party fails because, let’s face it, some of them are funny as hell.

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An infamous 2017 gender reveal party fail, which caused a 47,000 acre fire in Arizona.

 

Footnotes:

[i] Yes, I’m aware that both the concepts of sex and gender, and the relationship between them, are far more complex. However, in the context of ‘gender reveal parties’ it’s clear these celebrations are based on biological sex (chromosomes and/or genitalia) rather than identity-based ideas of gender.

[ii] IHRA website, here.

[iii] We should note here that variations in sex characteristics is separate to non-binary gender identities, with many intersex people identifying with the ‘sex’ they were assigned at birth. Again for the Intersex Human Rights Australia website:

‘Some intersex people and some non-intersex (‘endosex’) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognize the diversity of the intersex population, and in this case even the existence of intersex boys and girls, and intersex women and men.’

[iv] Of course, some parents possibly are deliberately setting expectations that their children will be either male or female, and that they will ‘act accordingly’ (including not identifying as trans or gender diverse), to which I say ‘fuck you’.

[v] Woman who popularized gender reveal parties says her views on gender have changed.