Tag Archives: LGBTI Australia

Cooperative workplaces must be trans and intersex inclusive workplaces

Posted on by

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.

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

Sex Discrimination Amendment (LGBTI) Bill Senate Inquiry Submission

Posted on by

Another week, another submission, this time to the Senate Legal & Constitutional Affairs Committee Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

Now that the Government has ‘deferred’ the Human Rights and Anti-Discrimination Bill/consolidation reforms, this Bill is the vehicle it has chosen to progress federal anti-discrimination protections for the lesbian, gay, bisexual, transgendernand intersex (LGBTI) community.

It is by no means a perfect Bill – at the very least it should incorporate the Government’s own policy of removing religious exceptions for people accessing aged care services. At best, it should remove all religious exceptions outside of the appointment of ministers of religion and religious ceremonies.

Nevertheless, this Bill, if passed, would be a significant step forward in terms of LGBTI law reform. If you have a chance to write your own submission before this Friday (26 April), I strongly encourage you to do so. Details here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/sex_discrim_sexual_orientation/info.htm

NB I have also not included the appendix to this submission, because it is simply the discussion about religious exceptions from my submission on the HRAD Bill last year.

Senate Legal and Constitutional Affairs Committee

Inquiry into Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

Submission by Alastair Lawrie

I am writing this submission to make three main recommendations:

i)                    That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, which introduces federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians for the first time, should be supported.

ii)                   That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed as a matter of priority by the Commonwealth Parliament; and

iii)                 That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be amended to remove all religious exceptions which would otherwise allow discrimination against LGBTI Australians, outside of appointments of religious office-holders (such as priests) and religious ceremonies.

I was born in 1978. That is three years after the passage of the Racial Discrimination Act 1975. In the year I turned 6, the Commonwealth Parliament supported the Sex Discrimination Act 1984. The Disability Discrimination Act was passed in 1992, about three years before I first came out as gay at age 17. Even the most recent stand-alone Commonwealth anti-discrimination law, the Age Discrimination Act 2002, has already been in operation for more than a decade.

In 2013, I am 34 years old, and I have still never enjoyed the protection of federal anti-discrimination laws on the basis of my sexual orientation. Discrimination on the basis of race has been prohibited for my entire life, and on the basis of sex for almost as long. But up until now, successive Governments have not seen fit to legislate to prohibit discrimination on the basis of sexual orientation, gender identity and intersex status.

Which means that the reforms contained in the Labor Government’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 are both incredibly welcome, and long overdue. Lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians deserve the right to be employed, to access services, indeed to simply go about their everyday lives, without the threat of being discriminated against on these grounds.

If and when this Bill is eventually passed, it will be another key milestone on the long journey towards full equality for our LGBTI citizens. Which is why my first recommendation is that this legislation should be supported.

My second recommendation is that the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 should be passed by the Commonwealth Parliament as a matter of priority.

There are now only five Parliamentary sitting weeks left before the end of this term, ahead of the federal election which is currently expected to be held on September 14th. Having waited so long – decades, in fact – it would be a devastating blow to the LGBTI community were this legislation to be delayed yet again because the current Parliament simply ran out of time.

The future is always unknowable: it may be that, should these reforms not be passed now, a new Parliament or even Government introduces similar legislation later this year, or early next year. That would obviously be a welcome development. But it may also be that, after the upcoming election, LGBTI anti-discrimination reforms are delayed for several more years.

The current Bill fulfils the general objective of signalling that discrimination on the basis of sexual orientation, gender identity and intersex status is no longer tolerated, by society and by the Parliament. It is already drafted, and (leaving aside the amendments suggested in my third recommendation) it is ready to go.

That is why all serving Parliamentarians, from all political parties and independents, should pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 as soon as possible.

My third and final recommendation is that the Bill should be amended to ensure that religious exceptions from LGBTI-anti-discrimination requirements are narrowly drafted, only covering religious appointments, such as priests, and religious ceremonies.

The justification for this position involves my personal experience. Like many, indeed probably most, LGBTI Australians I have been discriminated against in a wide variety of different situations. I have been abused on the street, and threatened with violence, simply for holding my boyfriend’s hand. I have received sub-standard treatment from different service-providers simply because of my sexual orientation, or at least because of their perceptions of me.

I have likely been discriminated against in terms of employment, because I have always been upfront about who I am, including through my job applications. But I will probably never know for sure, because discrimination like homophobia is insidious, and its victims can never know all of the different ways in which they are mistreated.

But by far the activity in which I have been discriminated against the most was the education I received during the five years that I attended a religious boarding school. There was, from memory, a school rule against homosexuality, I was bullied on the basis of my (perceived) sexual orientation and this was effectively condoned by the school which was aware of it but failed to take any action, the sex education that was provided completely ignored homosexuality (including omitting essential safe sex/HIV-prevention messages), and I had a pastor intimate that killing yourself because you were gay was not the worst possible outcome.

It distresses me to think that, if religious organisations are granted wide-ranging exceptions under anti-discrimination laws, they will lawfully be able to (mis)treat future students in this way.

No student should be subject to prejudice, from their schools as well as from other students, because of their sexual orientation, gender identity or intersex status. No teacher should have to fear for their job simply because of who they are, or who they are attracted to.

This principle extends far and wide across a range of different activities. Patients receiving hospital and other health or community services should not have to consider whether disclosing their identity will compromise the standard of care they receive. LGBTI doctors, nurses and other employees in the health and community sector should be able to be confident in talking about who they are without fearing possible repercussions.

This principle obviously also includes aged care services. And I welcome the Labor Government’s commitment that they will legislate to protect people accessing aged care services from discrimination on the basis of sexual orientation, gender identity and intersex status.

However, I question why these protections are not included in the current Bill – the drafting of such provisions is not overly complicated, and I would like to believe that no Parliamentarian could argue, or vote, against such a basic proposition.

I also question why such protections should not equally apply to the employees of aged care services. If we are going to have truly inclusive aged care services, then neither the service recipients nor the employees should be subject to discrimination simply because they are LGBTI.

But, for the reasons outlined above, I do not believe that even ‘carving out’ the aged care sector from the operation of religious exceptions goes far enough. There is no justification for allowing religious organisations to discriminate against service recipients or employees in any activity which is carried on in the public sphere. For further discussion of this, please see Appendix A, which I provided to the Senate Inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 in December last year on this very topic.

In conclusion, I would like to thank the Committee for the opportunity to comment on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. As I have indicated, I think this Bill could be significantly improved by limiting the operation of religious exceptions which undermine protections that would otherwise cover LGBTI Australians.

However, even if these exceptions are not removed by the current Bill, the fact that some LGBTI anti-discrimination protections will finally be enacted federally is sufficient justification to recommend both that the Commonwealth Parliament support the Bill, and that it be passed as a matter of priority. The Australian LGBTI community has waited long enough for these reforms. It’s time to just get it done.

Letter to Chris Bowen/Brendan O’Connor on LGBTI Asylum Seekers

Posted on by

Update 6 February 2013: So, this correspondence was never answered by Minister Bowen, before he left the portfolio in last week’s reshuffle. I don’t know for sure what that is a reflection of, but can only assume that not answering in 6 months means he was not open to scrutiny on the issue of LGBTI asylum-seekers and in particular their treatment on Nauru, Manus Island and, eventually, in Malaysia.

With the appointment of Brendan O’Connor as the new Minister for Immigration I have resent the original correspondence, including the questions below, to Minister O’Connor. If I have not received a response within 4-6 weeks it will be time to pursue this again but in a more public format. Thanks for reading.

Original Post: Like many Australians, I was appalled by the recent decision of the Australian Government to accept the recommendations of the Houston Report and send asylum seekers to Nauru and Papua New Guinea for indefinite periods (and by the Government’s refusal to rule out sending asylum seekers to Malaysia in the longer-term). I am also appalled by the potential consequence of this decision for LGBTI asylum seekers, and have written the following letter to Australia’s Immigration Minister, Mr Chris Bowen. I will of course write a similar letter to the Opposition’s Immigration spokesperson Scott Morrison, given the Liberal and National Parties supported the move to ‘offshore processing’. As always I will post any response received.

Dear Minister Bowen,

I am writing to express my disagreement and disappointment with the Australian Government’s decision to implement the offshore processing of asylum seekers.

I think that this decision is a failure of our human rights obligations under international law, not to mention a failure of our moral obligations as human beings to open our arms and our hearts to people fleeing persecution.

Given that your government has now committed to process asylum seekers in Nauru, Papua New Guinea and, in the medium term, through ‘regional processing’ in Malaysia, I am also writing with several questions which I would like answered about one particular issue – the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers.

  1. Do you acknowledge that there are many countries around the world where being LGBTI is illegal and/or subject to government harassment and intimidation?
  2. Do you accept that LGBTI people have the right to seek asylum on the grounds of persecution of their sexual orientation or gender identity?
  3. Do you agree that this means LGBTI asylum seekers should be accepted by countries like Australia, rather than be returned to their originating country and asked to ‘return to the closet’ or conceal their sexual orientation or gender identity? (Disturbingly, there have been some cases within Australia suggesting that LGBTI asylum seekers can be returned in such circumstances, something which is not required of people fleeing persecution on political, religious or other grounds. I am simply seeking your confirmation that you do not support this special and discriminatory imposition on LGBTI asylum seekers).
  4. Do you support the right of LGBTI people to seek sexual companionship, form loving relationships and found families no matter where they are in the world? Are these fundamental rights which should be protected?
  5. Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?
  6. Are you aware that homosexuality is currently illegal in all three countries to which the Australian Government currently intends to send asylum seekers?
  7. Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government (or, in the case of Malaysia, to asylum seekers who may be living in the community)?
  8. What representations have the Australian Government made to, and what agreements have the Australian Government sought with, the governments of Nauru, Papua New Guinea and Malaysia, on the specific treatment of LGBTI asylum seekers?
  9. Do you agree that, if LGBTI asylum seekers are unable to seek sexual companionship, form loving relationships or found families in Nauru, Papua New Guinea and Malaysia, that this is a fundamental breach of their human rights?
  10. As a fellow human being, are you comfortable that the Australian Government will reject someone who is fleeing the death penalty in another country for simply being who they are and instead send them to a third country where it remains a criminal offence to be who they are?

I have copied this letter to the Prime Minister, Foreign Affairs Minister and Attorney-General given these issues cut across several portfolios. I look forward to your prompt response.

Yours sincerely,

Alastair Lawrie

As an illustration of why there remain so many LGBTI refugees, the following map indicates the countries in which homosexuality remains illegal – while there has been significant progress over the past 50 years, there remains far too many countries shaded black, including of course Papua New Guinea:

Decriminalization_of_homosexuality_by_country