Janet Rice (Victoria, Australian Greens) Share this | Hansard source

[by video link] The Australian Greens believe that women have the right to equal respect, responsibilities, opportunities and outcomes in society, and we believe that women have the right to equal access to and participation in decision-making processes in all areas of political, social, cultural, intellectual and economic life. These should not be controversial statements. These should be outcomes, across the board, across the political spectrum, that we should be seeing and achieving across all parts of life. Sadly, that's not the reality.

I want to acknowledge the incredible work of my colleague Senator Waters in the portfolio of women and the work of all Australian Greens MPs who are advocating for gender equality. This is fundamental to who we Greens are as a party. That's why we need to see clear and urgent action so that this reality of genuine gender equality across the board is reached. We need that action so that women are safe at work and so that the recommendations of the landmark Jenkins Respect@Work report are actually implemented, including the core recommendation that there should be a positive duty on employers to ensure a safe workplace. The right of women to be safe at work should not be controversial and, particularly given that the Kate Jenkins recommendations were given to government at the beginning of last year, it should not be something that we are lagging on. The government has been so slow off the mark, and it is so disappointing to see a response that doesn't go to this core recommendation of the Jenkins review.

This is so important. We have to overcome the situation where, currently, one-third of workers in Australian workplaces report being sexually harassed and where forty per cent of women report being sexually harassed at work. These are just the most appalling situations. You would think that a government faced with those statistics would really be pulling out all the stops to do everything possible to address this problem—to make sure that we dramatically reduce the experience of sexual harassment, to cut through women's experience of sexual harassment at work and to do everything possible to address it. The government should be doing everything it can to promote gender equality and build a fairer society.

Senator Waters has spoken this morning on our overall response to this legislation, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, and what changes we Greens think should be enacted in our laws to support women. I fully support the measures that she has outlined in her speech. You can take that as read. What I want to focus on today, as the Greens spokesperson for LGBTIQA+ people, is the fact that we've also got an opportunity to make some changes to our legislative framework that will improve outcomes for people who are transgender, people who are gender diverse and non-binary and people who have variations in sex characteristics, because these people are also dramatically impacted by gender inequality, and equality should not be negotiable.

Kate Jenkins, in her report, noted that there's 'increasing evidence that sexual harassment affects some groups of people in disproportionate ways', noting:

In addition to gender, other factors may increase the likelihood that a person may experience workplace sexual harassment. Workers who may be more likely to experience sexual harassment in the workplace include:

So we've got intersectionality going on here. These are intersexual issues.

In addition to that, on the basis of people who are transgender, gender diverse and non-binary and people with variations in sex characteristics, there is discrimination on the basis of gender identity. Just do some sums in your head. If 30 per cent—almost a third—of all workers in Australia report having experienced sexual harassment at work and 40 per cent of women experience sexual harassment at work, just have a think about what the levels of sexual harassment are for people in these groups. When for each of these groups there is very much a level of one or two or even more people who are more likely to experience sexual harassment, that is what their experience is going to be.

I particularly want to focus on the fact that in our legislation that would protect people of diverse gender identities and people with variations in sex characteristics there are gaping holes that are not being addressed by the legislation being proposed today. In particular, gender identity and sex characteristics are not attributes currently protected under the Fair Work Act. I'd like to draw on some work by the advocate and activist Alastair Lawrie, who noted:

… the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination.

While this legislation prohibits adverse treatment on the basis of sexual orientation—thereby protecting lesbians, gay men and bisexuals (at least to some extent …)—it does not include equivalent protections for trans, gender diverse and intersex people.

In short, the Fair Work Act 2009 does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

So not only are trans or gender diverse people or people with variations in sex characteristics not protected from sexual harassment or discrimination when they are at work; there is also considerable discrimination going on when it comes to trans and gender diverse people or people with variations in sex characteristics actually gaining employment. So we've got a situation where people are struggling to actually get a job. So many trans and gender-diverse people and non-binary people just don't get jobs.

Just this morning, a contact of mine, Ricki Spencer—a trans woman from Melbourne—wrote on her Facebook page:

Just had another rejection for a teaching job. I have now applied for over 45 teaching positions in government and non government schools in Victoria. It feels that in 2021 when you disclose that you have a mobility disability and are a transgender woman you are not seen as a suitable candidate for a teaching position.

I completed my Bachelor of Education specialising in English and qualified to teach primary and secondary schooling at Victorian University, a Graduate Certificate in Religious Education at Australian Catholic University and a Masters of Education specialising in Diversity at the University of Melbourne.

Yet I feel that our gender becomes an issue and schools are still heteronormative in thinking and presenting.

How can we ever address the issues confronting our students who are struggling with gender identity in school settings if they won't allow teachers like myself to be role models in schools?

Ricki ended her post on Facebook this morning with:

Why am I so unwanted?

This is tragic, and this is the reality: trans and gender diverse and non-binary people with variations in sex characteristics are being discriminated against now, under our existing legislation.

We've got the opportunity today. I'm putting forward some amendments to the government's legislation today that would address these issues, that would enable us to make gender identity and the variations in sex characteristics protected attributes. There is an opportunity to do that to improve this legislation today.

Why does this matter and why does it need to happen now? Because it matters for people's minds. I'd like to quote the submission from Just.Equal about why this matters for people's lives overall:

…the recent Private Lives 3 Report found that respondents were far more likely to experience unfair treatment on the basis of gender identity than sexual orientation:

While 4.5% of respondents reported being unfairly treated 'always' or 'a lot' in the pa st 12 months because of their sexual orientation, 19.8% of respondents reported the same with respect to their gender identity.

In a separate question, 9.9% of LGBT respondents combined reported being 'refused employment/promotion' in the previous 12 months, which is a disturbingly high figure.

Meanwhile, although intersex status was not included in the above questions, when asked whether they currently felt accepted 'a lot' or 'always' at work, only 50% of intersex respondents answered yes.

Just.Equal also said:

It is clear to us that trans, gender diverse and intersex employees need at least the same level of workplace protections as their lesbian, gay and bisexual counterparts, as well as women, people with disability and others.

It's very clear that Ricki Spencer is not alone. This is not a unique situation that she is going through. This is widespread across Australian society.

We think that the legislation before us today is an opportunity to address this gap. Given this legislation is a response to the Respect@Work report, overall in our Greens engagement we are focusing on the important work being done to make safer workplaces for women. I again want to commend Senator Waters for her work on this issue. But what we're asking with regard to trans people, gender-diverse people, non-binary people and people with variations in sex characteristics is quite simple: to make minor amendments to the Fair Work Act to ensure that the attributes that are protected under the Sex Discrimination Act are also protected under the Fair Work Act.

I'm going to be moving two amendments later on in the debate on this bill. The first one would adopt a newer definition for 'sex characteristics' which would draw on recent state legislation, which is now understood to be best practice. It would be updating the Sex Discrimination Act to change the definition of 'intersex people' to 'people with variations in sex characteristics'. Another amendment I'm going to be moving, which I've requested after discussions with colleagues, does something similar. I do want to thank the procedure office for their quick work in preparing it at short notice. That amendment takes a slightly different technical approach. Rather than creating a new definition in federal legislation for 'sex characteristics', it would simply include 'intersex' status in the Fair Work Act by reference to the Sex Discrimination Act. That one is not our preferred option—and I'll speak more to it when we're in the committee stage.

I really hope that either of these amendments will be adopted so that we can change our legislation so that people who are transgender, gender-diverse or non-binary or who have variations in sex characteristics can be protected under our laws just as other people are and so that we can take the steps forward that we need to be taking to ensure that we are truly reaching equality—whether it's equality for women, equality for gender-diverse people or equality for people with variations in sex characteristics. We need to actually reach equality. It's not good enough to just continue to be on the journey towards equality. We have an opportunity today to be taking strong, simple action to move us towards actually reaching equality for all Australians.