ADVOCATES LOBBY GOV’T & UNIONS FOR EQUAL TRANS AND INTERSEX WORKPLACE PROTECTIONS
National advocacy group Just-Equal has written to national leaders urging stronger employment protections for transgender, gender diverse and intersex Australians.
Spokesperson for Just-Equal, Brian Greig, said the group has written to the Federal Minister and Shadow Minister for Industrial Relations, and the Secretary of the ACTU to urge federal reform.
“The Fair Work Act must explicitly and equally protect trans, gender diverse and intersex Australians from workplace discrimination”, Mr Greig said.
“At a time when trans and gender diverse Australians face an upsurge in prejudice and discrimination, it is vital they have the same legal protections as other Australians.”
“The current discussion about industrial relations between the Government, businesses and unions is an ideal time to raise this.”
Trans advocate and Equality Tasmania board member, Charlie Burton, explained the problem in detail:
“Anti-discrimination protections under the Fair Work Act are inadequate and do not ensure trans, gender diverse and intersex employees can seek redress with claims of adverse action and unlawful termination.”
“The Fair Work Act is clear in that it protects people on the basis of sex and sexual orientation, but it does not include gender identity or sex characteristics.”
Some advocates believe the Fair Work Commission might interpret ‘sex’ to include trans, gender diverse and intersex people, but such an interpretation would be open to challenge by employers because it is not a defined attribute under current definitions in the legislation.
However, according to Dr Burton,
“While these attributes are separately covered under the Sex Discrimination Act, the Australian Human Rights Commission can take much longer to conciliate, and enforcing outcomes may require action in the Federal Court at the risk of significant costs orders to the complainant.
“Trans folk should be allowed to access arbitration by the Fair Work Commission which would be quicker and usually a ‘no costs’ jurisdiction.
“Women, lesbians, gay men and bisexual people have this choice, but it is denied to trans, gender diverse and intersex citizens.
“The simple reform we seek will remove the current uncertainty and allow parties to choose an expedited, low-cost resolution if it suits them.”
The letter to federal Industrial Relations Minister, Christian Porter, is below. Identical letters were sent to Shadow Industrial Relations Minister, Tony Burke, and head of the ACTU, Sally McManus.
For a copy of this statement in the web, click here
For more information contact Dr Charlie Burton on 0402 016 625 or Brian Greig on 0407 776 961.
Hon. Christian Porter MP
Minister for Industrial Relations
PO Box 6022 Parliament House
CANBERRA ACT 2600
22 July 2020
RE: Amending the Fair Work Act to properly protect trans, gender diverse and intersex persons.
Dear Mr Porter,
We write to request your support to ensure the Fair Work Act 2009 (Cth) (FWA) is amended to include trans, gender diverse and intersex persons within protected attributes for the purposes of non-discrimination.
Currently, the FWA does not explicitly include gender identity or sex characteristics (intersex status) as grounds for claims of discrimination in employment.
The relevant provisions (sections 351 and 772, Fair Work Act 2009), cover sex and sexual orientation, but not gender identity or sex characteristics.
This is to the disadvantage of intersex, trans and gender diverse employees seeking to make claims of adverse action and unlawful termination.
It has been suggested that the Fair Work Commission has interpreted the existing ground of ‘sex’ in the FWA to include gender identity, and potentially intersex status. This means intersex, trans and gender diverse people may currently have access to conciliation. It also means they may not.
Additionally, if the Fair Work Commission made a favourable interpretation of inclusion employers could challenge that in federal court.
This situation places trans, gender diverse and intersex workers in a situation of uncertainty and vulnerability, not imposed on any other protected attributes/people.
Further, the absence of gender identity and sex characteristics as named, protected attributes in the FWA sends the wider message that employment discrimination against trans, gender diverse and intersex Australians is more acceptable than other forms of discrimination.
The only way to cement the rights of trans, gender diverse and intersex Australians under the FWA is to amend the Act to include the grounds of gender identity and sex characteristics.
This would also send a clear message that trans, gender diverse and intersex people have the same rights as other Australians.
We are strongly of the view that Australia needs to amend the federal Fair Work Act so it protects trans, gender diverse and intersex Australians and aligns with the Sex Discrimination Act 1984 (Cth).
Gender identity and intersex status is covered in the SDA, but the Australian Human Rights Commission can take much longer to conciliate, and enforcing outcomes may require action in the Federal Court or Federal Circuit Court at the risk of significant costs orders to the complainant.
By contrast, arbitration by the Fair Work Commission can be much quicker and is generally a ‘no costs’ jurisdiction.
For this reason, sex, sexual orientation, marital status, family responsibilities and pregnancy are all covered under both the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits them.
Women, lesbians, gay men and bisexual people can all exercise this choice, but is potentially denied to trans, gender diverse and intersex citizens.
We believe the current consultations underway between Government, Business and Unions to reform industrial relations laws in Australia is an ideal opportunity to raise this issue. In addition, with more trans and gender diverse Australians ‘out’ in their workplaces, it is possible we will see increased cases of gender-based discrimination. Now is the time to act.
Dr Charlie Burton
Trans community advocate, Equality Tasmania board member
0402 016 625
Ivan Hinton-Teoh OAM
0419 124 826