Competing interests: protection of transgender rights and freedom of religious beliefs - the Australian perspective

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, here, we focus on the Australian perspective and how protection of transgender rights intersects with the implied right of freedom of political communication and anti-discrimination provisions for religious beliefs.

Current position

Protections against discrimination in the workplace in Australia are covered by a series of legislation, with protection covering ‘gender identity’ embedded in the Sex Discrimination Act 1984 (Cth) (SDA) and across the breadth of corresponding state and territory legislation.

Under the SDA, it is unlawful for an employer to discriminate against an employee for their sexual orientation, intersex status and gender identity, where employers are also vicariously liable for the discriminatory acts of employees. Most relevantly, gender identity means, “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth”. This protection is extended to agency workers and contractors. Additionally, protections for sexual orientation in the SDA are adopted into the Fair Work Act 2009 (Cth) (FWA).

The protections

Where a transgender individual (‘trans’ is adopted in this article) is covered under the SDA in respect of their gender identity, they have the right not to be subjected to:

• Direct discrimination: i.e., where an individual trans person is treated less favourably because of the person’s gender identity.
• Indirect discrimination: i.e., where conditions are imposed, or proposed to be imposed, or are a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the trans person.
• Harassment: i.e., where an individual trans person is the recipient of an unwelcome sexual advance, unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature (including verbally or in writing), where a reasonable person would have anticipated the possibility that the trans person harassed would be offended, humiliated or intimidated.
• Victimisation: i.e., where an individual trans person is subjected to, or a perpetrator threatens to subject them to, detriment on the grounds that the individual has made a complaint, or proposes to make a complaint or commence proceedings, such as under the SDA for harassment or discrimination (or where the perpetrator of the victimisation believes the trans person has done so).

Freedom of speech and freedom of religious belief

In Australia, rather than a personal right derived from statute, such as is found in the UK Equality Act (2010), there is a reliance on the doctrine of implied freedom of communication and political communication (Implied Right) drawn from the Constitution of the Commonwealth of Australia 1901, (Constitution).

In addition and under specific circumstances, employees may also seek recourse for discrimination in the workplace for their religious and/or political beliefs, such as for adverse treatment, or termination, under the FWA (FWA Protections), and corresponding state and territory legislation.

Relevant updates and public sentiment

Given there is no personal right to freedom of political communication, guidance as to the reach of the Implied Right for statutory employers can be taken from the Federal Court case, Chief of Defence Force v Gaynor [2017] (Gaynor), albeit applying different legislation.

When Mr Gaynor was terminated from the army reserve after making abrasive social media comments such as “I wouldn’t let a gay person teach my children and I am not afraid to say it”, the test applied was essentially whether the statute relied upon (the Defence (Personnel) Regulations 2002 (Cth)) to terminate Mr Gaynor’s service could, suitably, necessarily and on balance, impose a restriction on the Implied Right. The full court of the Federal Court decided it could.

Gaynor has been followed more recently, with the then Federal Circuit Court of Australia (FCCA) reaffirming that the freedom to communicate is capable of being protected at law, where the Implied Right operates as a freedom from government restraint, rather than a freestanding personal right.

The protections afforded under the SDA for gender identity (and resultant employer policies produced to enforce such protections) can conflict with the FWA Protections. Protracted commentary about this conflict came to a head in 2019 with the contentious, and very public debate, when Israel Folau filed an application to the FCCA claiming his contract with the Australian Wallabies rugby team was unlawfully terminated following his anti-gay and anti-trans social media posts. Rugby Australia alleged the posts, such as that “hell awaits” gay people, went against their code of conduct.

We don’t yet have definitive case law on how to deal with this intersection of the protection of trans rights and the FWA Protections, as most matters arising from this conflict, such as Folau’s claim, settle.  However, we anticipate that the Fair Work Commission and the courts, presented with circumstances similar to those of Bailey or Forstater, would carefully balance these nuanced protections, and as usual, any decision will turn on the specific facts.

Also hotly debated in Australia was the Religious Discrimination Bill 2022 (Bill), originally introduced by the former government in 2021, which would have provided statutory protection for freedom of religious belief. Highly contentious was the ‘statement of beliefs’ clause enabling individuals to make statements that could not be discriminatory under Australia’s suite of anti-discrimination legislation, with the only caveat based upon the intent of the statement maker (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 leave for gender affirmation in Australia has gained recent attention with unions lobbying, as there is no statutory entitlement, for paid gender affirmation leave to be incorporated into Enterprise Bargaining Agreements (agreements on terms and conditions of employment between employers and their employees).

In the private sector, gender affirmation leave is also being adopted by household names who are promoting their new or increased gender reaffirmation 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, who have had gender reaffirmation leave policies in place since 2018.

Comment

Especially with the prolific use of social media and individual empowerment to express personal opinion online in the public arena, reviewing your business’ social media policies, bullying and harassment policies, including by giving specific examples of unacceptable behaviour and repercussions for discriminatory statements is timely given current Environmental, Social and Governance sentiment (additionally because the employer can be held vicariously liable and this is also of relevance to insurers).

There are no statutory entitlements to leave for gender affirmation, if this is important to your business’ ethos, you can incorporate this type of leave into your policies, where paid and unpaid leave can cover medical appointments, surgery, hormone appointments, and time taken to update legal documents. 

Related items:

• Competing interests: protection of transgender rights and freedom of religious beliefs - the UK perspective
• The Australian Federal Government Jobs and Skills Summit 2022: What to expect next
• Future of work in Australia: Jobs and Skills Summit
• How will the proposed Respect at Work legislation impact Australian businesses?