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Australia now behind US in LGBTIQ workplace rights, advocates say

This week’s US Supreme Court decision that protects LGBTIQ people from workplace discrimination highlights the need for Australia to move forward, advocates say.

The historic ruling found that the US Civil Rights Act of 1964 protects LGBTIQ people from being fired or discriminated against for who they are.

Long-time trans advocate Sally Goldner AM said Australia needs to amend the federal Fair Work Act so that it protects transgender, gender diverse, and intersex people and aligns with the Sex Discrimination Act.

“This will cement protection for trans, intersex, and gender diverse employees against adverse action and unlawful termination,” Goldner said. 

Spokesperson for advocacy group just.equal Brian Greig said the relevant provisions of Australian industrial law (sections 351 and 772 of the Fair Work Act 2009) do not cover trans or 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,” Greig said. 

This issue was raised in 2018 with the Turnbull government by human rights advocate Alastair Lawrie, but dismissed by then-Minister Craig Laundy. 

The Minister said that the concerns were covered by the general protections in the Commonwealth Sex Discrimination Act, but Lawrie said this advice was misleading and incomplete.

“Gender identity and intersex status is covered in the [Sex Discrimination Act], 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,” Lawrie said.

“By contrast, arbitration by the Fair Work Commission can be much quicker and is generally a ‘no costs’ jurisdiction. 

“This is why sex, sexual orientation, marital status, family responsibilities, and pregnancy are all covered under both the [Sex Discrimination Act] and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits them.

“Women (including lesbians), gay men, and bisexuals [who are cis and not intersex] can all exercise this choice, but it is denied to trans, gender diverse, and intersex citizens.”

Greig said current consultations to reform industrial relations laws in Australia represent 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,” said Greig.

“The US Supreme Court ruling adds to the legal precedents and momentum for this overdue reform.”

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