Post by Ayla on Feb 8, 2016 8:59:24 GMT 8
Transgender people experience higher levels of discrimination but there legal avenues for recourse. Ron Hughes reports. ..
What legal resources do trans people have to overcome this discrimination?
“Trans people have recourse to anti-discrimination laws which exist both at a state and a federal level,” Peldova-McClelland explains. “Commonwealth legislation only began to cover gender identity in 2013. That covers things like employment, education, provision of goods and services, accommodation and so on.”
“There’s direct discrimination, for example where somebody might be sacked or bullied or harassed on the basis they are trans, which is unlawful. There’s also indirect discrimination, which is where there’s a requirement or condition which is on its face neutral, but it has the effect of disadvantaging people who are trans. An example: if a company has an HR policy which doesn’t permit changes to an employee’s records, that policy may require a trans person to be constantly disclosing information about their gender identity in order to explain why there’s discrepancies in their personal details,” Peldova-McClelland says.
“You can action that under Commonwealth laws. You can go to the Australian Human Rights Commission and lodge a complaint. The Commission will investigate the complaint and may decide to hold a compulsory conciliation conference where the complainant and for example their employer will attend and try to come to a resolution and if that’s not possible then the complainant has the option to take the matter to the federal court.”
“In case law there’s hardly anything on gender identity discrimination and I think that’s because most of these matters get resolved at the conciliation stage, because it’s so difficult to prosecute them beyond that stage. It’s very expensive, it takes years and discrimination is quite difficult to prove as a technical matter,” Peldova-McClelland says. “A lot of the published decisions you’ll see say ‘No, there was no discrimination’. So it’s quite hard.”
Another murky aspect of the law is that quite often there’s no real legal definition of sex. “You get definitions like, ‘A woman is a person of the female sex’ – totally opaque,” Peldova-McClelland says. “There’s this assumption that sex is this sort of natural, easily discoverable thing that structures society and when you look at it it’s really, really complex. It brings into question a lot of structures in our society. It’s a huge question.”
Getting help
“If you have a complaint under Commonwealth anti-discrimination laws you go to the Human Rights Commission, if you have a complaint under state law you go the anti-discrimination board or tribunal or equal opportunity commission in your state,” Peldova-McClelland says.
Given the laws vary from state to state people can find themselves with different levels of protection and protection for different things in different states. Given there’s not that much case law and laws vary from state to state Peldova-McClelland advises anyone wanting to pursue a complaint to consult with a lawyer experienced in anti-discrimination work as an initial step.
“I know that often involves money which makes it impossible for some people,” she says, “But if there are community legal centres that can help, such as Sydney’s Inner City Legal Centre, which specialises in LGBTI legal issues I’d definitely recommend that. The choice of which jurisdiction to go for is a complex one and it’s not something you’ll be able to get your head around just by reading websites. Have a word with a lawyer first. Anyone practicing in discrimination law should be able to help.”
Sascha Peldova-McClelland is a lawyer specialising in Employment and Industrial Law with Maurice Blackburn Lawyers. Sascha has a particular interest in ending sex and LGBTI discrimination in the workplace. Go to mauriceblackburn.com.au
gaynewsnetwork.com.au/feature/transgender-discrimination-know-your-rights-20283.html
What legal resources do trans people have to overcome this discrimination?
“Trans people have recourse to anti-discrimination laws which exist both at a state and a federal level,” Peldova-McClelland explains. “Commonwealth legislation only began to cover gender identity in 2013. That covers things like employment, education, provision of goods and services, accommodation and so on.”
“There’s direct discrimination, for example where somebody might be sacked or bullied or harassed on the basis they are trans, which is unlawful. There’s also indirect discrimination, which is where there’s a requirement or condition which is on its face neutral, but it has the effect of disadvantaging people who are trans. An example: if a company has an HR policy which doesn’t permit changes to an employee’s records, that policy may require a trans person to be constantly disclosing information about their gender identity in order to explain why there’s discrepancies in their personal details,” Peldova-McClelland says.
“You can action that under Commonwealth laws. You can go to the Australian Human Rights Commission and lodge a complaint. The Commission will investigate the complaint and may decide to hold a compulsory conciliation conference where the complainant and for example their employer will attend and try to come to a resolution and if that’s not possible then the complainant has the option to take the matter to the federal court.”
“In case law there’s hardly anything on gender identity discrimination and I think that’s because most of these matters get resolved at the conciliation stage, because it’s so difficult to prosecute them beyond that stage. It’s very expensive, it takes years and discrimination is quite difficult to prove as a technical matter,” Peldova-McClelland says. “A lot of the published decisions you’ll see say ‘No, there was no discrimination’. So it’s quite hard.”
Another murky aspect of the law is that quite often there’s no real legal definition of sex. “You get definitions like, ‘A woman is a person of the female sex’ – totally opaque,” Peldova-McClelland says. “There’s this assumption that sex is this sort of natural, easily discoverable thing that structures society and when you look at it it’s really, really complex. It brings into question a lot of structures in our society. It’s a huge question.”
Getting help
“If you have a complaint under Commonwealth anti-discrimination laws you go to the Human Rights Commission, if you have a complaint under state law you go the anti-discrimination board or tribunal or equal opportunity commission in your state,” Peldova-McClelland says.
Given the laws vary from state to state people can find themselves with different levels of protection and protection for different things in different states. Given there’s not that much case law and laws vary from state to state Peldova-McClelland advises anyone wanting to pursue a complaint to consult with a lawyer experienced in anti-discrimination work as an initial step.
“I know that often involves money which makes it impossible for some people,” she says, “But if there are community legal centres that can help, such as Sydney’s Inner City Legal Centre, which specialises in LGBTI legal issues I’d definitely recommend that. The choice of which jurisdiction to go for is a complex one and it’s not something you’ll be able to get your head around just by reading websites. Have a word with a lawyer first. Anyone practicing in discrimination law should be able to help.”
Sascha Peldova-McClelland is a lawyer specialising in Employment and Industrial Law with Maurice Blackburn Lawyers. Sascha has a particular interest in ending sex and LGBTI discrimination in the workplace. Go to mauriceblackburn.com.au
gaynewsnetwork.com.au/feature/transgender-discrimination-know-your-rights-20283.html