Section 5: Stories of discrimination, vilification and harassment - Addressing sexual orientation and sex and/or gender identity discrimination (2011)

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Addressing sexual orientation and sex and/or gender identity discrimination

Consultation Report (2011)

Section 5 - Stories of discrimination, vilification and harassment

• 5.1 Discrimination in employment 
  • (a) Discrimination in employment on the basis of sexual orientation
  • (b) Discrimination in employment on the basis of sex and/or gender identity
  • 5.2 Discrimination in the provision of services 
    • (a) Aged care
    • (b) Health care
    • (c) Emergency housing
    • (d) Appropriate toilets and change rooms
    • (e) Sport
  • 5.3 Vilification and harassment 
    • (a) Vilification and harassment on the basis of sexual orientation
    • (b) Vilification and harassment on the basis of sex and/or gender identity
  • 5.4 Bullying and harassment experienced by young people
  • 5.5 The impact of discrimination, vilification or harassment on mental health
• 6 The potential benefit of federal laws protecting from discrimination and harassment on the basis of sexual orientation and sex and/or gender identity

Understanding the experiences of discrimination, vilification and harassment suffered by people of all sexual orientations and sex and/or gender identities is an important first step in considering how legal protection from discrimination on these grounds might be framed. The consultation heard personal experiences of discrimination and harassment from some participants, while others relayed the challenges faced by partners, relatives, friends, associates, members and clients.

Experiences of discrimination differed greatly depending on whether the discrimination was based on a person’s sexual orientation or on a person’s sex and/or gender identity.

The consultation heard about:

• discrimination in employment
• discrimination in the provision of goods and services
• vilification and harassment
• bullying and harassment experienced by young people
• the impact of discrimination, vilification or harassment on mental health and wellbeing.

5.1 Discrimination in employment

Many participants reported experiences of discrimination in employment. These reports are supported by research indicating that such discrimination is commonplace. For example, a national survey of LGBT people in 2006 found that 10.3% of participants had been refused employment or denied a promotion based on their sexuality.^[31] Another workplace study found that:

• 52% of gay and lesbian employees surveyed were the subject of discrimination in their current employment because of their sexual orientation
• more than 17% of participants felt their careers had probably been restricted because of their sexual orientation.^[32]

(a) Discrimination in employment on the basis of sexual orientation

Many participants in this consultation described being denied employment or promotion opportunities or being dismissed or disciplined because of their sexual orientation. For example:

Robert and Matthew alleged they were dismissed from their cleaning job ... because they were a gay couple. The couple alleged that their employer regularly brought up the topic of their sexuality in work conversations, reduced their hours, and told them they wouldn't be given older people's houses to clean because they would not be acceptable to older people.^[33]

I worked for seven years in the 1970s for the Australian Public Service. I felt very vulnerable to discrimination during that time and believe that my sexual orientation was the uncited reason in at least one instance of not obtaining a promotion. I understand that great improvements have been made in the culture of the APS since that time, but I believe that all federal public servants should enjoy at least the same explicit protections under the law as their state counterparts.^[34]

The Inner City Legal Centre described how a client felt vilified and harassed by the actions of her employer:

Tania was employed by a church run disability service. After working for 18 months Tania attended work and found that the homepage on her work computer displayed a bible quote that said negative things about gay people. Tania assumed that this was a mistake and drew her team leader’s attention to the quote. The next day the quote remained. Tania wrote a letter to the management explaining that she felt upset and unsafe having to look at that quote everyday and asked that it be replaced with a bible quote that did not vilify gay people. Three of Tania’s colleagues also signed the letter. Tania was singled out and told that her gay agenda had no place in a Christian work place. Tania’s professional reputation was then attacked, she was accused of poor work performance. Tania was also assigned shifts that she had previously indicated she would be unable to take or were inappropriate. Tania contacted the [Anti-Discrimination Board] to see if she could lodge a complaint and was told that her employer may be able to rely on the religious exception in the Act. Tania left her job due to ongoing harassment.^[35]

(b) Discrimination in employment on the basis of sex and/or gender identity

A number of trans and intersex participants explained the unique challenges they faced in the workplace, including not being recognised as their preferred gender, being forced to disclose private information and being denied employment opportunities. For example:

Many companies are not willing to employ trans people, especially those of us who do not "pass" as the gender we are transitioning to, because we're considered too "difficult" for the workplace. Others will employ us, but force certain requirements on us - the use of a badge with a gender-specific name, gender-specific uniforms, forcing us to use the wrong toilet, etc.^[36]

While a public servant I was referred to as “the freak” by several co-workers and received ongoing harassment by one particular employee after I had mentioned that I was Intersex. As I understood it then, there was no protection for harassment on the basis of being intersex as the sexual harassment laws only protected males and females, and not Intersex.^[37]

The WA Gender Project described a trans man who:

[H]as his trans status repeatedly disclosed to other employees in the workplace. He reports that every time a new employee starts work, they are told that he is transsexual and that he “used to be a girl”. He says that new employees will often then begin to use female pronouns to refer to him after hearing this private information.^[38]

Other participants described being told they are no longer suitable for the role after their sex and/or gender identity has been revealed. For example:

I was working in a local retailer when I first began my social transition from female to male. I cut my hair very short, and started using my current name. The general manager of the company sent a photograph of me, and my new name in an email to all the managers in the group. I wasn’t comfortable with this, but he said that the rest of the group needed to know who they were talking to over the phone and email. I had been hired for an assistant manager position, so that made sense. I was horrified a few weeks later when I was told that I was not only being demoted from the position I was hired for, but being made a casual staff member (with no rostered shifts) because I wasn’t ‘fit for full time work’. I protested, and he said: “face it, you aren’t the girl we hired”.^[39]

Organisations representing people who are intersex also reported discrimination in employment for which there is no remedy:

[A] person may be discriminated against in the workplace with impunity if their sex is Intersex. Although current legislation provides for the protection of males and females against sex discrimination it makes no provision for those who have physical anatomies that are neither.^[40]

5.2 Discrimination in the provision of services

Many participants provided examples of discrimination in relation to the provision of services, including in:

• aged care
• health care
• emergency housing
• appropriate toilets and change rooms
• sport.

(a) Aged care

Participants drew attention to research that shows that many older LGBTI people have significant fear of harassment, poor treatment and alienation in aged care facilities.^[41] For example, GRAI (GLBTI Retirement Association Incorporated) referred to the following research:^[42]

• In comparison to older heterosexuals, older LGBTI people are two and a half times more likely to live alone, twice as likely to be single and over four times as likely to not have children. As a consequence, older LGBTI individuals may experience greater isolation, loneliness, lack of traditional family support and lack of recognition of partners.^[43]
• 20% of LGBTI respondents experienced discrimination from health care providers as a result of their same-sex relationship.^[44]

The consultation heard examples of discrimination in aged care facilities, including:

An older transgender woman with dementia, who had lived most of her life as a woman but had never had sex reassignment surgery, was forced by staff of the religious aged care facility where she was being cared for, to live as a man.^[45]

Several participants stressed the importance of education about sexual orientation and sex and/or gender identity for aged care service providers.^[46]

(b) Health care

During the consultation, trans and intersex people raised a range of concerns about experiences of discrimination based on sex and/or gender identity in the provision of health care. Issues raised by participants included:

• difficulties in accessing and funding sex affirmation treatment in Australia, including a lack of specialists in some areas and the fact that sex affirmation procedures are not funded through the Medicare system:

When I first started testosterone treatment and my body began to change I was really excited. But after a while I began to get more and more uncomfortable with my breasts. I had always been uncomfortable with them but this was different. I started to think that if I didn't have chest surgery soon I would kill myself. I was so lucky that someone helped me to pay for it because I couldn't afford it on my own. And now I just wonder how all of the other trans guys out there who can't afford it cope. It is the worst feeling in the world. I wouldn't wish it on my worst enemy.^[47]

• not being able to claim Medicare rebates for procedures which were not aligned with a person’s legal sex:

In Western Australia, a person with an ovarian cyst went to hospital and was thought to be male and treated for appendicitis. He could not get a Medicare rebate for treatment of an ovarian cyst.^[48]

Intersex people are often rejected for medical procedures when their official sex is seen to conflict with their anatomical structures; e.g. ovaries in an apparent male and testes in an apparent female.^[49]

• inappropriate treatment by the medical profession, including disclosure of irrelevant information,^[50] failure to recognise preferred sex and/or gender on medical records,^[51] and refusal of medical services:

Toni is a transgender woman living in the inner city. Toni needed to attend a residential drug rehabilitation centre as she had been struggling with alcohol and opiate dependency. Her support worker called the local clinic, this clinic happened to be run by a religious based charity. The clinic informed Toni’s support person that there was an opening for Toni and that they would hold a place for her. When Toni presented at the clinic she was refused service. When asking why she was told there was no spot for her. Toni was sure that this refusal was based on the fact that she is a transgender woman.^[52]

• degrading treatment by medical service providers:

When I found a lump in my breast I was referred to a breast specialist who refused to see me straight away because “I might scare the women in the waiting room”. I was instead required to wait 7 days before the specialist would see me.^[53]

A person was placed in a male ward in a local hospital. When the receptionist was asked why she was on a male ward, the receptionist replied “because that is how we see him”.^[54]

(c) Emergency housing

The consultation heard of discrimination occurring in access to emergency accommodation sought by trans people. For example, the Freedom! Gender Identity Association described how a trans woman who had not had gender reassignment surgery was refused access to federally funded emergency housing.^[55] They also described the situation of a trans man who expressed concerns for his safety if his sex and/or gender identity was revealed whilst staying at a male boarding house.^[56]

The National LGBTI Health Alliance described the difficulties of a trans person attempting to find housing:

A trans man in Queensland who has had ongoing health problems, including four surgeries in the past year, has been homeless for 9 months. He has been on the Qld Housing most urgent list for that time, but has seen other people that he knows of housed before him. Requirements for documentation have been onerous in the extreme, with the same documents having to be submitted repeatedly. When discreetly living in a tent in bushland in a public park, he has been ‘moved on’ by police. Accommodation in male boarding houses is risky for him because of his trans status.^[57]

(d) Appropriate toilets and change rooms

Several trans and intersex participants spoke of the difficulties they face in accessing appropriate toilets and change rooms both at work and in public places. For example:

Many transgender people are forced to limit their public social interactions to places they know will enable them to toilet/change without incurring discriminatory behaviour, harassment or violence. This has serious consequences for all travel and, in particular, limits one’s ability to respond to unexpected events in a ‘regular’ way. One of our members had to use toilets on a different floor while transitioning as peers on his floor were uncomfortable about him using either one.^[58]

I brought a dress from a shop in the Canberra Centre last week. The shop only had a women’s fitting room and they refused me permission to try the dress on even though I explained that I was Intersexed. I brought the dress anyway and went home to try it on. It did not fit. So I went back to the shop to ask for a refund. They flatly refused, saying their store policy was no refunds. So I checked with ACT Fair Trading only to discover their policy was that you can't get a refund if you choose the wrong size.^[59]

(e) Sport

The consultation heard that trans and intersex people are often restricted from participating in sporting activities. For example:

In several jurisdictions, an individual can be legally denied the right to participate in their chosen sport on the basis of the sex shown on their birth certificate. Where the sex on an individual’s birth certificate is not the person’s self-identified gender, it becomes extremely difficult for them to participate in even social or amateur sporting activities.^[60]

5.3 Vilification and harassment

Vilification and harassment includes derogatory or intimidating behaviour such as physical or verbal abuse. Participants described their frustration at the lack of legal protection from vilification and harassment in Australia. For example:

I always hear homophobic language being used as put downs etc and never see anyone being reported for vilification, however if they were [using] racist or sexist language etc they would be reported for being racist/sexist.^[61]

It is my understanding that there are no laws against harassment based on gender identity. In the last month I have been harassed numerous times because I am visibly sex and/or gender diverse. I have been harassed by people on the street and by people working in establishments I have entered. It is really scary if there are no laws against people harassing you for being gender diverse. There is essentially nothing you can do about it. This makes the public sphere a very unsafe place for a lot of intersex, sex and gender diverse people.^[62]

Research shows that people are frequently vilified or harassed on the basis of their sexual orientation or sex and/or gender identity. For example, in 2006, the Private Lives survey found that out of all participants, 59.3% experienced personal insults or verbal abuse and 13.7% experienced physical attacks or other kind of violence.^[63]

Speaking Out (2010) found that of their survey participants:

• 92% of trans women and 55% of trans men reported verbal abuse
• 46% of trans women and 36% of trans men reported physical attacks without a weapon (punched, kicked, beaten)
• 38% of trans women and 9% of trans men reported physical attacks with a weapon (knife, bottle, stones).^[64]

Vilification and harassment are particularly prevalent amongst young people and has serious consequences for their mental health. Writing Themselves In: 3 found:

Almost double the number of young people who had been verbally abused (40%), in comparison with those who had experienced no abuse, had thought of self harm (22%). Three times those who had been physically abused (62%), in comparison with those who reported no abuse, had thought of self harm. This pattern was repeated through self harm, suicidal thoughts and suicide attempts. For example, in comparison with those who reported no abuse, twice the number of young people who suffered verbal abuse, had attempted suicide and four and half times the number of young people who had been physically assaulted, had attempted suicide.^[65]

The consultation heard many personal stories of vilification and harassment experienced or witnessed by participants. Some of the more serious examples are described below.

(a) Vilification and harassment on the basis of sexual orientation

The Commission heard of a number of stories of vilification or harassment on the basis of sexual orientation. For example:

When walking home, a man and his boyfriend were ‘jumped’ by three teenage boys who called them ‘faggots’ and punched them in the stomachs, chests and heads.^[66]

I was abused and screamed at by a group of men... who called me a f**king dyke [and said] that I should be stabbed or raped.^[67]

ACON described an incident reported to them as part of their Lesbian and Gay Anti-Violence Project:

The victim has endured 20 years of homophobic abuse from his neighbour. He has received taunts such as, “All poofters should be killed at birth”; “Why don’t you poofters drop dead of AIDS?”, “AIDS poofters” etc. The victim has taken several AVOs against his neighbour and has had him charged with malicious damage. For the past two years the victim has been on a disability support pension and is currently on anti-depressants. He dreads venturing as far as his front yard because of the fear of abuse from his neighbour.^[68]

The consultation also heard that vilification of gay men is closely linked with vilification on the basis of HIV/AIDS status:

As gay men account for around 80% of all people that have been diagnosed with HIV,^[69] vilification on the ground of HIV/AIDS status disproportionately affects gay men. ACON recommends that HIV/AIDS status be included as grounds where vilification is prohibited.^[70]

A few comments expressed concerns about the increased risk of violence for lesbian women who may be discriminated against on the basis of being female (their sex) and their sexual orientation. Participants stressed their concern that women only spaces should still be permitted under federal laws.^[71]

(b) Vilification and harassment on the basis of sex and/or gender identity

The Commission heard some particularly disturbing examples of vilification and harassment on the basis of sex and/or gender diversity. For example:

Other stories of vilification? I don’t know where to start. Do I tell of the story I’ve heard of a person who had rocks thrown through her window in a country town? The person who had a rubbish bin thrown through the window of their car? Do I tell them my own story? I was sitting in my car minding my own business at a set of lights. Two pedestrians came across the pedestrian lights and thumped on the car. I went over the intersection and realised I was in some degree of shock at the noise before I realised what had happened – one of the pedestrians raced over to the other side of the intersection, put their fist through the driver’s side window that was closed, smashing it, punched me in the side of the head six times and just walked off. I spent the night on an emergency trolley in the Alfred hospital.^[72]

At one place I started in, when I started transitioning 13 years ago, I was attacked every day for two weeks. Every day and every night 24/7 ... My sons used to come over who were then 12 and 14 and I would be getting rocks and bolts and bits of iron, brick, wood, landing on the tin roof every five minutes. I eventually moved because the police attitude to that was unless they are actually in the house [they could not] do anything.^[73]

5.4 Bullying and harassment experienced by young people

The consultation also heard a significant number of accounts of bullying and harassment on the basis of sexual orientation or sex and/or gender identity experienced by young people, largely in school environments. A recent study on young LGBTI people, Writing Themselves In: 3, found that school was the most likely place of abuse for young people with 80% experiencing abuse at school. ^[74]

Young people provided the following examples of bullying or harassment:

I was bullied in highschool for looking, talking, walking and acting like a gay male. Obviously this didn't encourage me to come out...until I was "outed" by a friend....; being a teen is so so soooo hard. Add discrimination, fear, anxiety, stress, depression because of your sexuality and you become a headcase and end up in hospital. That's not how it should be. (Cisgendered male, 17)^[75]

Yes. I have been called ‘poofter’ from the early days in high school, because I was small, weak and studious. I drew into a shell and did nothing but study. The thought of talking to anyone about my feelings, let alone complaining, would have been laughable. I was often physically attacked at school as well. I am surprised I got through those years.^[76]

Several participants asserted that school teachers did not respond to abuse, were unsupportive of LGBTI students or engaged in harassment themselves. For example:

During my high school years I was severely bullied (physically and emotionally) to cope I want[ed to] confide in my schools Chaplin, I'm not religious I just got good vibes from him. I told him I was gender queer and that I wasn't straight, after that he stopped all communication and left me to deal with things on my own which lead to my first suicide attempt (Gender “undefined” female, 18).^[77]

Throughout my time in high school I experienced constant harassment because of my gender identity. I was frequently made fun of in class, often by teachers. Students refused to use my chosen name, instead referring to me by my birth name and using female pronouns; teachers did not punish them even though it was quite clear that the harassment was deliberate ... Food was thrown at me on a number of occasions. I was pushed, spat on and hit. A group of boys in the year above me repeatedly threatened to rape me as "proof" I was a girl. There were several threats to my life. .. None of the people who bullied me were ever punished.^[78]

The Youth Affairs Council of Victoria also found that more than 50% of young people surveyed said they had been treated unfairly more than 3 times because of their sexual orientation or gender identity.^[79]

5.5 The impact of discrimination, vilification or harassment on mental health

Australian and international research demonstrates that discrimination, harassment or vilification has a significant impact on the mental health of LGBTI people. For example, Suicide Prevention Australia estimates that suicide attempts by lesbian, gay and bisexual people are between 3.5 and 14 times higher than their heterosexual peers.^[80] In the TranZnation Report on the health and wellbeing of trans people in Australia and New Zealand, one in four respondents reported having suicidal thoughts in the two weeks before completing the survey.^[81]

Participants demonstrated the connection between discrimination, abuse and social exclusion with mental health issues including suicidal thoughts and attempts. For example:

We would also like to highlight the very real links between community attitudes towards "normality" in sex and gender, and the very real health impacts on sex and/or gender diverse people that result from violence, social exclusion and social isolation.^[82]

The effect of this pervasive abuse can be the development of significant mental health issues experienced by GLBT people. The impacts of discrimination, homophobia and violence were reflected in an analysis of 2007 Australian Bureau of Statistics data which shows that GLB people were more than twice as likely to experience ‘any mental disorder’. Alarmingly, homosexual and bisexual people were more than three times more likely to have had an affective disorder such as depression compared to heterosexuals.^[83]