Re trans, gender diverse and intersex protections under the Fair Work Act
Friday June 19th 2020
Dear editor,
This email is a clarification of our media release below regarding employment protections for trans, gender diverse and intersex people under the Fair Work Act. 
As we noted, the Fair Work Act does not explicitly include gender identity or sex characteristics as grounds for claims of discirmination in employment.
Since our statement was issued, some people have noted that the Fair Work Commission has interpreted the existing ground of sex in the Fair Work Act to include gender identity. This means trans and gender diverse people may currently have access to conciliation. 
However, an employer could challenge the FWC's interpretation in federal court.
Further, the absence of gender identity and sex characterstics as named, protected attributes in the Fair Work Act sends the message that employment discrimination against trans, gender diverse and intersex Australians is more acceptable than other forms of discrimination, including discrimination on the basis of sexual orientation.
The only way to cement the rights of trans, gender diverse and intersex Australians under the Fair Work Act 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. 
Just-Equal has written to the ACTU, the Federal Minister for Industrial Relations and the Labor Shadow Minister to recommend the legislative reform outlined above.
Best wishes,
Alastair Lawrie
Sally Goldner
Brian Greig
For a link to this clarification on the web, click here
Media Release
Thursday June 18th 2020
Australia now behind US on LGBTIQ civil rights
Trans and intersex employees not covered under Fair Work Act 
The US Supreme Court decision that protects LGBTIQ people from discrimination in the workplace highlights the need for Australia to move forward.
The ruling on Monday found that the US Civil Rights Act of 1964 protects LGBTIQ people from being sacked for who they are.
Long-time transgender advocate, Sally Goldner AM, said Australia needs to amend the federal Fair Work Act so its protects transgender, gender diverse and intersex Australians and aligns with the Sex Discrimination Act.
“This will cement protection for trans, intersex and gender diverse employees against adverse action and unlawful termination,” Ms Goldner said. 
Spokesperson for Just-Equal, Brian Greig, said the relevant provisions of Australian industrial law (sections 351 and 772, Fair Work Act 2009), covers sex and sexual orientation, but not gender identity or sex characteristics (intersex status).
“The result of this exclusion is that trans, gender diverse and intersex employees can be subjected to abuse at work, or dismissed because of who they are, but cannot make a complaint to the Fair Work Commission,” he said. 
This issue was raised with the Turnbull Government in 2018 by human rights advocate Alastair Lawrie but dismissed by the Minister at the time, Craig Laundy. 
The Minister told Lawrie his concerns were covered by the general protections contained within the Commonwealth Sex Discrimination Act. Lawrie says this advice was misleading and incomplete.
“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,” Lawrie explained. 
“This is why 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, including lesbians, gay men and bisexuals can all exercise this choice, but it is denied to trans, gender diverse and intersex citizens.”
Mr Greig said the current ‘Government-Business-Unions’ consultations to reform industrial relations laws in Australia was an ideal opportunity to raise this issue.
“This problem can be easily fixed by adding trans, gender diverse and intersex people under the protection of the Fair Work Act."
“The US Supreme Court ruling adds to the legal precedents and momentum for this overdue reform,” he said.
For a copy of this statement on the web, click here
Brian Greig OAM (WA):         040 777 6961
Sally Goldner AM (VIC):        0407 946 242