This article was co-authored by Ashlee Nealon, Paralegal, Sydney.
Continuing our series of articles on the tension between the protection of transgender rights and competing interests, we focus here on the Australian perspective and how the protection of transgender rights intersects with the implied right to freedom of political communication. and anti-discrimination provisions for religious beliefs. .
Protections against discrimination in the workplace in Australia are covered by a range of legislation, with protection covering ‘gender identity’ being embedded in the Sex Discrimination Act 1984 (Cth) (SDA) and across corresponding state and territory legislation.
Under the SDA, it is illegal for an employer to discriminate against an employee because of their sexual orientation, intersex status and gender identity, with employers also being vicariously liable for employees’ discriminatory acts. More relevantly, gender identity means “the gender identity, appearance or mannerisms or other gender-related characteristics of a person (whether through medical intervention or no), with or without regard to the person’s designated sex at birth”. This protection is extended to temporary workers and subcontractors. Additionally, sexual orientation protections in ADS are enacted in the Fair Work Act 2009 (Cth) (FWA).
Where a transgender person (“trans” is adopted in this article) is covered by the SDA with respect to their gender identity, they have the right not to be subjected to:
- Direct discriminationi.e. when a trans person is treated less favorably because of their gender identity.
- Indirect discrimination: that is, where conditions are imposed or are proposed to be imposed, or are a condition, requirement or practice which has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the trans person.
- Harassment: that is, where a trans person is the recipient of an unwelcome sexual advance, unwelcome request for sexual favors, or other unwelcome behavior of a sexual nature (including verbally or in writing), when a reasonable person would have anticipated the possibility that the harassed trans person would be offended, humiliated or intimidated.
- Victimization: that is, when a trans person is victimized or a perpetrator threatens to harm them on the grounds that the person has filed a complaint, or offers to file a complaint or to take legal action, such as under the SDA for harassment or discrimination (or where the victimizer believes the trans person has done so).
Freedom of expression and freedom of religious belief
In Australia, rather than a personal right derived from statute, as found in the UK Equality Act (2010), reliance is placed on the doctrine of implied freedom of communication and political communication (right implied) from the Constitution of the Commonwealth of Australia 1901, (Constitution).
In addition and in specific circumstances, employees may also seek redress for discrimination in the workplace because of their religious and/or political beliefs, such as adverse treatment or termination, under the FWA (FWA protections) and corresponding state and territory laws.
Relevant updates and public sentiment
Since there is no personal right to freedom of political communication, guidance as to the scope of the implied right for statutory employers can be drawn from the Federal Court’s decision, Chief of Defense Forces Against Gaynor  (Gaynor), but applying different legislation.
When Mr Gaynor was fired from the army reserve after making abrasive comments on social media such as ‘I wouldn’t let a gay man teach my kids and I’m not afraid to say it’, the test applied was essentially whether the law relied upon (the Defense (Personnel) Regulations 2002 (Cth)) to terminate Mr Gaynor’s service could properly, necessarily and on balance impose a limitation on the implied right . The full court of the Federal Court decided yes.
Gaynor was followed more recently with the then Federal Circuit Court of Australia (FCCA) reaffirming that the freedom to communicate can be protected by law, where the implied right operates as a freedom from governmental coercion, rather than as a stand-alone personal right. .
The protections afforded under the SDA for gender identity (and the resulting employer policies to enforce those protections) may conflict with the protections of the FWA. Protracted commentary on this dispute came to a head in 2019 with the contentious and very public debate, when Israel Folau filed a claim with the FCCA claiming that his contract with Australian rugby team the Wallabies had been unlawfully terminated at following his anti-gay and anti-trans comments. social media posts. Rugby Australia alleged that the messages, such as ‘hell awaits’ gay people, breached their code of conduct.
We don’t yet have definitive case law on how to deal with this intersection of trans rights protections and FWA protections, as most of the issues arising from this conflict, such as Folau’s claim, settle. However, we anticipate that the Fair Work Commission and the courts, faced with circumstances similar to those of Bailey Where Forstatingwould carefully balance these nuanced protections and, as usual, any decision will be based on specific facts.
The Religious Discrimination Bill 2022 (Bill), originally introduced by the former government in 2021, which would have provided legal protection for freedom of religious belief, has also been hotly debated in Australia. The “statement of belief” clause was highly controversial, allowing individuals to make statements that could not be discriminatory under Australia’s suite of anti-discrimination laws, with the only caveat based on the intent of the author of the statement (which had to be in good faith, without malicious intent) rather than the perception of the person receiving the discriminatory statement. Under the current Labor government, this Bill is unlikely to be reintroduced.
gender affirmation leave
Paid gender affirming leave in Australia has recently come to the attention of trade unions, as there is no legal right, for paid gender affirming leave to be incorporated into union bargaining agreements. company (agreements on employment conditions between employers and their employees).
In the private sector, gender affirmation leave is also being embraced by household names promoting their new or increased gender affirming leave policies such as Coles and Australia and New Zealand (ANZ) Banking Group Limited announcing policies this year, joining Telstra and Zurich in 2021, the Australian Broadcasting Corporation in 2019, all following Woolworths and Westpac, which have had gender reaffirmation leave policies in place since 2018.
Especially with the prolific use of social media and individual empowerment to express a personal opinion online in the public arena, it is timely to review your company’s policies on social media, bullying and harassment, including giving specific examples of unacceptable behavior and the repercussions of discriminatory statements. current environmental, social and governance sentiment (additionally because the employer can be held vicariously liable and this also pertains to insurers).
There is no legal right to gender affirming leave, if it is important to your company ethics you can incorporate this type of leave into your policies, where paid and unpaid leave can cover medical appointments, surgery, hormonal appointments, and time taken to update legal documents.