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Queer Rights At Work

Rights Rights and Freedoms

Queer Rights At Work

Queer Rights At Work Conference
Brisbane

20 June 2008

Graeme Innes AM, Human Rights Commissioner
Human Rights and Equal Opportunity Commission


I begin by acknowledging the traditional owners of the land on which we meet today.

I also want to thank the conference organisers for the opportunity to speak today. conferences such as this are great opportunities to discuss some of the pressing human rights issues in Australia. I'm particularly pleased to be talking about queer rights in the workplace, as fair employment conditions are some of the most fundamental of all human rights. Trade unions have a long history of fighting for justice in the workplace, and I encourage the unions here today to continue that fight for gay, lesbian, transsexual and intersex workers.

For those of you unfamiliar with Australia's Human Rights Commission, it's an independent government body that protects and promotes human rights. My role as Human Rights Commissioner is to monitor human rights in Australia. One focus of my work has been promoting equal rights for gay, lesbian, transsexual or intersex Australians. Today, I'll talk about some of the projects we have worked on that support the human rights of those communities, particularly in the area of employment.

There is no one separate human rights treaty focusing on sexuality and gender identity rights; instead, all international human rights laws apply to gay, lesbian, transsexual and intersex individuals without discrimination. In March 2007, this was confirmed in the Yogyakarta Principles, developed by a group of human rights experts. These principles are important in promoting and protecting the human rights of people who are sexuality and gender identity diverse.

Most importantly, principle 12 outlines the right to work. It states-

Everyone has the right to decent and productive work, to just and favourable conditions of work, and to protection against unemployment, without discrimination on the basis of sexual orientation or gender identity.

Which sounds more than reasonable to me. Similar provisions relating to the right to work can be found in the Universal Declaration of Human Rights, and in the International Covenant on Economic, Social and Cultural Rights.

In addition, the right to non-discrimination, and the right to equality before the law, are fundamental human rights principles. The United Nations Human Rights Committee has been very clear that these principles apply to gay, lesbian, transsexual and intersex people. Therefore, all gay, lesbian, transsexual and intersex people are entitled to be treated with dignity and respect, and to be protected from discrimination.

Despite these human rights protections, human rights treaties do not automatically apply to domestic law in Australia. The parliament needs to implement human rights obligations by passing domestic legislation, such as anti-discrimination laws. Many of you would know about the federal laws in Australia which prohibit discrimination against women, older people, people with disability and people of different races. Unfortunately, there is not yet a specific federal anti-discrimination law on the basis of sexuality or sex and gender identity.

In fact, there is a raft of laws and policies which explicitly deny certain rights to queer workers, and queer workers continue to experience discriminatory treatment at work. As Human Rights Commissioner, my role has included specifically looking these issues.

Before I get to the specific policy and project work we've been involved with, I'll briefly explain the Commission's complaint handling function. The Commission investigates, and attempts to conciliate, complaints of discrimination or breaches of human rights. Under the Human Rights and Equal Opportunity Commission Act, it has the power to look into discrimination on the basis of sexual preference in all Australian workplaces. Sexual preference covers people who are gay and lesbian, but not people who identify as transgender, transsexual or intersex.

Of the approximately 1250 complaints received in the 06-07 financial year, the main area of complaint was employment. These complaints accounted for 42 percent of complaints under the Racial Discrimination Act; 81 percent of complaints under the Sex Discrimination Act; 46 percent of complaints under the Disability Discrimination Act; and 68 percent of complaints under the Age Discrimination Act. The majority of complaints received under the Human Rights and Equal Opportunity Commission Act related to discrimination in employment on the ground of criminal record.

It doesn't surprise me that most complaints are related to the workplace. And it probably doesn't surprise the workers, members, organisers and officials of trade unions here today - because the right to employment affects our ability to experience and assert all other rights. Unemployment makes it difficult to afford the basic necessities in life, and limits the contributions a person can make in public and social life. 

As already mentioned, our federal legislation doesn't adequately protect workers against sexuality or sex and gender identity discrimination. Queer workers can seek some protection under state anti-discrimination laws, as well as in industrial relations commissions. However, a federal law would send a strong message to the Australian community that discrimination against gay, lesbian, transsexual or intersex persons is wrong. Such a federal law would also assist queer workers to assert their rights in the workplace.

The sheer importance of employment means that it is absolutely crucial that workplaces are safe, and free of discrimination. I know that many unions are working towards that goal. Unfortunately, the stories that we've heard, indicate that not all queer workers have access to safe and discrimination free workplaces. I'll share some of those stories with you today. I'll also share with you stories about victories and positive initiatives by a number of organisations and individuals. These stories are the inspiration to continue to promote the human rights of people who are gay, lesbian, transsexual or intersex. They also provide some insight into actions that can be taken to ensure the protection of queer rights at work.

Let me talk first about our projects in this area, and explain some of the specific issues that relate to the workplace.

In June 2007, the Human Rights Commission launched the final report of our year-long National Inquiry into Discrimination against People in Same-Sex Relationships in the area of financial and work-related entitlements.  This Inquiry, known as the Same-Sex: Same Entitlements inquiry, found 58 pieces of federal law which discriminate against same-sex couples.

The Workplace Relations Act was one of these. The federal government has agreed to amend these discriminatory laws. It recently introduced the first of its reform bills dealing with the superannuation of Commonwealth employees. Unfortunately, the coalition, this week, held up the reforms, through an inquiry in the Senate. Those of you diligent enough to read the Canberra Times (which I understand has a big circulation in Brisbane) will know that this morning I expressed my concern at this unnecessary delay.

The government has also recently released ten National Employment Standards. These standards explicitly provide employees in same-sex relationships with the same entitlements as opposite-sex couples. I'm pleased that the government has taken on board the recommendations that we made in our Same-Sex: Same Entitlements report so soon after the report's release. I'm disappointed that, because the employment standards do this, they have been delayed by the coalition as well.

Let me talk about some of the findings in the Same-Sex: Same Entitlements report that relate to the workplace.  We found that a worker in a same-sex couple is not guaranteed parental leave to care for a newborn child, and may not be guaranteed carer's leave or compassionate leave to care for a same-sex partner, or a member of their partner's family. A worker in a same-sex couple may not receive the same travel entitlements, employment allowances, worker's compensation, or superannuation entitlements, as a worker in an opposite-sex couple.

This discrimination occurs because the current laws use definitions such as 'spouse', 'de facto spouse', 'child' and 'immediate family', which exclude same- sex couples and their children. For example the term 'de facto spouse' in the Workplace Relations Act is currently limited to a person of the 'opposite sex'.

Those two words - opposite-sex - mean that same-sex couples and families do not receive the same benefits and entitlements as opposite-sex couples and families.  It's quite clear that these provisions breach the rights to non-discrimination and equality before the law. But they also have the potential to breach a range of other human rights available to people in same-sex families, including the rights of children.

In particular, these provisions breach the principles of the best interests of the child, in the Convention on the Rights of the Child. Because, after all, when you deny financial benefits to same-sex parents, you inevitably sacrifice the best interests of the children being raised by that couple.

Of the estimated 25,000 plus same-sex couples in Australia, approximately 20 % of lesbian couples, and 5 % of gay male couples, are raising children. Federal laws, and some state and territory laws, fail to recognise both same-sex parents as genuine parents. The consequence is that same-sex families are frequently denied access to entitlements, such as parental leave entitlements. For example, the current minimum workplace entitlements for Australian employees include parental leave. But parental leave is only guaranteed to a male employee who is the spouse of a woman giving birth. This means that there is no guarantee that a lesbian co-mother can take leave to help her partner through the birth of her child, and those difficult first few weeks of dealing with a screaming baby!

Once the new National Employment Standards are passed, this situation will thankfully be rectified. However, at the moment all 58 discriminatory laws still remain.

The Same-Sex: Same Entitlements report has been successful because it spurred the government into action, and has stimulated public debate. One of the main reasons for the report's success was the telling of real-life experiences of people affected by discrimination. We collected these stories during more than three months travelling around Australia, holding public hearings and community forums to hear, first hand, about the impact of discriminatory laws on gay and lesbian couples.  Although we could have produced a report with recommendations about new laws without leaving our offices in central Sydney, we wanted to ensure that real stories about real Australians were heard loud and clear. We wanted to be able to tell the government, and the community, that laws which discriminate against same-sex couples have a real impact on real people. It's these stories that make the discrimination come alive. Politicians, and the public, are generally touched and moved by these stories.

Let me share two stories with you. In Canberra, we heard from a Commonwealth public servant, Brian McKinlay, who talked about superannuation entitlements:

My long-term same-sex partner and I are 58 and 60 years of age. We are both members of the Australian Public Service; I have been a member for thirty years. On joining the APS, we were each required to become members of the Public Sector Superannuation Scheme (the PSS). Of itself, that is no bad thing.

My salary is double that of my partner, and I want to provide security for him should I die before he does. However, unlike other couples, we are unable to provide security to each other through superannuation death benefits … even though opposite-sex de facto partners are eligible.

My partner and I hold all our assets in common - house, mortgage, car, bank accounts, furniture, insurance, etc. Superannuation is the only asset of importance that we cannot share…

This is an extraordinary and hurtful discrimination by the Australian Government against its own employees. Am I any less committed to my partner than a member of a de facto opposite sex couple, or a person employed in the private sector?

In Adelaide we heard from Sue and Leanne Nearmy, who had just become the parents of a five week old child. Sue and Leanne have been together for eight and a half years. They contribute to the community through volunteer work, donations and providing respite care to a foster child. They find it frustrating that they were allowed to care for foster children, yet they were not allowed to adopt children, or access assisted reproductive technology. Leanne said- 

We are an average suburban family. We are working hard and contributing to our community. We don't want special treatment - just what others can expect from their legal and social community. Our rights are denied simply because of who we love. We just want equality.

The Same-Sex: Same Entitlements report was limited to looking at the financial and work related aspects of discrimination faced by same-sex couples. However, during our consultations, we also heard many other stories of discrimination faced by the broader gay, lesbian, bisexual, transgender and intersex community. We weren't able to cover these in the inquiry report.

For example, we heard that people who are gay, lesbian, transgender, transsexual and intersex experience discrimination and harassment in the workplace.

We heard about a lesbian woman working in a NSW government department who received obscene emails, including sexualised cartoons of lesbians, and even had a sex toy left on her desk. After speaking to her supervisor, she received more harassment, and left that place of employment.

We also heard from a lesbian woman employed as a teacher in a private school. She told us:

Some of the other teachers were aware that I am a lesbian. One of my superiors advised me that if any of the pupils found out I am a lesbian, I would be sacked. I knew they had the power to do so, and it made me feel very uncomfortable and insecure. I had to be very careful about everything I said, making sure I never said the work 'we' when describing any activity or event in my life. I was forced to be constantly on my guard, in case I inadvertently implied that I had a partner, or that I was in a same-sex relationship. This experience continues to affect me today. I have not worked with children since that time.

You may have heard similar stories, or find that gay and lesbian members are experiencing similar discriminatory treatment. Unions have a very important role to play in stamping out this behaviour, and effecting attitudinal change in workplaces.

This year, we've begun a sex and gender diversity project, which looks at some of the human rights issues for people who identify as transgender, transsexual or intersex. The focus of this project is on legal recognition. We've been meeting with people, and receiving correspondence from people, about the issues that most concern them. Many of these impact on the ability of people who are transgender, transsexual or intersex, to be treated with dignity in their workplace. For example, some people who are sex and gender diverse cannot obtain appropriate documentation. Some people are forced into the situation where, despite a female name and appearance, their official documentation records their sex as male. This makes it extremely difficult for them to obtain employment. People who are transsexual or transgender have an unemployment rate of 9.1 per cent; more than twice the national average.

Just this week, at a consultation in Melbourne, a transsexual man spoke of beginning work for a new employer, subject to a criminal record check. After he had been working for some time, the criminal record check (which included his previous female name and sex) was faxed to his employer, where a junior employee read the fax. Details of that man's sex and gender history became known to all his colleagues, and his hours decreased from fulltime to 6 hours a week. He was forced to seek other employment, because he could not financially survive.

We have also heard from a woman who recalled that Centrelink refused to recognise her as a female, because she had not had sex affirmation surgery. Therefore, on Centrelink's JobSeekers Network, she was listed with a female name and a male gender. She didn't receive any calls for interviews, and became frustrated after several attempts to change the listing of her sex.

If there are any unions that have some information that might be useful to our sex and gender diversity project, we would be very pleased to hear from you.

I find all these stories deeply distressing. However, we have also heard several fantastic examples of positive initiatives.

This conference is an example of a positive initiative: an opportunity for unions to think about the ways in which they can be involved in promoting the human rights of people who are gay, lesbian, transgender, transsexual and intersex in the workplace.

We have also heard of companies going beyond current legal requirements, and providing workers in same-sex couples leave entitlements and workplace benefits equal to those received by opposite-sex couples. Some companies have enshrined this approach in policies, and workplace agreements. unions often negotiate workplace agreements which provide same-sex couples with equivalent entitlements. I encourage you to continue to consider gay, lesbian, transsexual and intersex issues when you negotiate workplace agreements.  In your other advocacy, you could consider how your workplaces, and the workplaces of your members, can be more queer friendly, and discuss suitable policies with employers.

There are several opportunities for training in sexuality, and sex and gender diversity issues, for both unions and employers. Seek out those opportunities. both the Queensland Association for Healthy Communities, and the Anti-Discrimination Commission of Queensland, have information in this regard. The Gender Centre in New South Wales also contains some policies on its website for how an employer might deal with a person who is transitioning from one sex to another at work.

Over the past two years, I've been incredibly moved by people in the gay, lesbian, transgender, transsexual and intersex communities, who've made it very clear that there's only one thing that they want: to be treated equally; no more, and no less than any other Australian. Just equal. To treat people differently, simply because of who they love, or who they are, is just not fair. As you go home from this conference, I hope you have a renewed passion for protecting queer rights at work.

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