Stories of discrimination

Stories of discrimination experienced by the gay, lesbian, bisexual, transgender and intersex community

October 2007

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1. What is this paper about?

In 2006, the Commission conducted a National Inquiry into discrimination against people in same-sex relationships regarding access to financial and work-related entitlements and benefits. The inquiry is known as the Same-Sex: Same Entitlements Inquiry (the Inquiry).

In June 2007, the Commission published the final report of the Inquiry. The Inquiry found that there are 58 federal laws which discriminate against same-sex couples and their children. The Inquiry recommends simple amendments to the 58 laws: changing the definitions describing de facto relationships to include same-sex couples.

The Inquiry also recommends changes to federal, state and territory laws to recognise the relationship between a child and both parents in a same-sex couple. This would better protect the best interests of the child.

Click here for more information on the Same-Sex: Same Entitlements Inquiry

Whilst conducting the Inquiry, the Commission also heard about several other areas of discrimination being faced by gay, lesbian, bisexual, transgender and intersex (GLBTI) Australians. Some of those experiences include stories of discrimination in:

• health care services;
• aged care services;
• the workplace;
• recognising the identity of gender diverse people.

This paper shares some of the stories of GLBTI discrimination that the Commission heard in the Same-Sex: Same Entitlements Inquiry.

Several submissions made to the Inquiry are referenced in this paper. Those submissions and others can be accessed on the Submissions section of the Same-Sex: Same Entitlements webpage.

The Commission hopes that by sharing these stories, we can start meaningful conversations about how to address GLBTI discrimination and promote equality. The Commission will be talking with organisations and individuals in the GLBTI community about these issues over the next few months.

2. What does GLBTI stand for?

‘GLBTI’ is an acronym that stands for Gay, Lesbian, Bisexual, Transgender and Intersex. The Commission understands that GLBTI people form a diverse group with each individual having separate issues of which sexuality or gender discrimination may be only one aspect. However, the Commission is interested in looking at common areas of discrimination that GLBTI people face.

3. What rights do people who are GLBTI have?

There is no one separate human rights treaty focussing on sexuality and gender rights; instead GLBTI people enjoy all human rights without discrimination. In particular, people who are GLBTI enjoy the fundamental rights of non-discrimination and equality before the law.

The principle of non-discrimination is set out in Article 2 of the International Covenant on Civil and Political Rights (ICCPR) which provides:

Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The principle of equality before the law is set out in Article 26 of the ICCPR which provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex language, religion, political or other opinion, national or social origin, property, birth or other status.

The United Nations Human Rights Committee has been very clear that this principle includes GLBTI people. Similar non-discrimination provisions are in the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

In March 2007, a group of human rights experts developed and adopted what is known as the Yogyakarta Principles. The Yogyakarta Principles confirm that all international human rights laws apply to GLBTI people.

Click here for more information on the Yogyakarta Principles.

4. What stories have we heard about discrimination in accessing health care services?

• 4.1 Negative attitudes by hospital staff towards GLBTI people

During its Inquiry, the Commission heard that some GLBTI people suffer from negative attitudes by staff in health care services. This treatment has ranged from overt homophobia to a simple failure to understand the existence of same-sex relationships. In either case, some people in the GLBTI community feel like there is discrimination in accessing health services.

In the Inquiry, a man compared the experiences of his two daughters when accessing medical care. One is in a same-sex relationship and the other is an opposite-sex relationship:

Recently while visiting my daughter [Sacha], Anna came home from work in pain and distressed with a bad ear infection, before departing to go to the emergency room, I couldn’t but notice sadly that Sacha gathered all these papers that states their relationship. Yet when we got there, that was one of the first questions asked - their relationship status - to be able to tick the right category, to which my daughter replied they are a couple and it was up to them to which category they thought was applicable. My other daughter only has to be there with her [male] partner, no further questions are needed, and the Medicare card says it all.1

• 4.2 Visiting rights in hospital for same-sex partners

GLBTI people sometimes experience difficulty in visiting their same-sex partner in times of medical emergencies or illness. This may be because hospital policy generally restricts access to ‘close family’ and this is often determined on the basis of marital or blood ties.

In the Inquiry, the Commission heard from a woman who told a story about a lesbian friend woman being denied the right to farewell her dying partner:

One of our lesbian friends lay ill and dying in her hospital bed.  When it came time for her to die the hospital staff prevented her partner from entering her hospital room and sitting with her at the end of her life because she was not the ‘spouse’.  Our friend died, alone. Her partner sat outside in the corridor prevented from being with her. She continues to suffer great distress that her life-time partner died without her comfort and without knowing she was there with her.2

Gay and Lesbian Health Victoria has recently launched a series of posters to be displayed in waiting rooms that promote GLBTI friendly health services in Victoria. The posters also explain visitation rights protected by Victorian legislation. For more information see www.glhv.org.au/?q=resources

• 4.3 Difficulties in giving medical consent and making decisions for a same-sex partner

Some people in the GLBTI community have talked about experiences where they have not always been able to make decisions for their incapacitated same-sex partner, or are excluded from making decisions on behalf of a deceased partner.

In an Inquiry forum, the Commission heard from a lesbian woman who was hospitalised last year:

My partner rode in the ambulance with me and stayed with me while I received treatment. However, when consent for further treatment was needed the hospital had to find my sister. Everything goes fine until the laws kick in and then the same sex partner is excluded. 3

• Health services and people with diverse gender identity

The Commission has heard that accessing health services may be especially difficult for people with diverse gender identity. These difficulties may stem from how staff are trained and the way that health care schemes are administrated.

The Australian Medical Association noted in its submission to the Inquiry that:

anecdotal research indicates that experiences or expectations of discriminatory treatment [for intersex people] may lead to decreased accessing of healthcare facilities.  This has flow on effects for untreated mental and physical health problems.4

The Inquiry also heard that Medicare and the Pharmaceutical Benefits Scheme (PBS) does not always meet the needs of gender diverse people.

The WA Gender Project told the Inquiry about problems with Medicare:

The Health Insurance Commission will not recognise the affirmed sex of a transgender individual unless surgery has been performed.  In many circumstances this denies transgender people appropriate medical treatment.  For example, a pre-operative transsexual woman may be denied Medicare rebates for mammograms.  This is alarming, given that transsexual women, like all women, are at risk of breast cancer.5

The ALSO Foundation told the Inquiry of problems with the PBS:

The Federal Government should urgently review the health care rebate system and the Pharmaceutical Benefits Scheme to ensure that it better reflects the needs of transgender people. Currently transgender people that take medications and hormone therapies are often subject to extremely high cost prescriptions that are often not subsidised by the Pharmaceutical Benefits Scheme. These medications and hormones are vital to the health and wellbeing of many transgender people and should be available at affordable prices and accessible across Australia, particularly in regional areas.6

• 4.5 Same-Sex: Same Entitlements health care recommendations

As discussed earlier, the types of discrimination described in this paper was outside the Inquiry’s terms of reference. However, the Inquiry did make specific recommendations regarding discrimination against same-sex people in relation to the financial entitlements and benefits of health care schemes.

Same-sex couples are financially worse off than opposite-sex couples when it comes to claiming benefits under the Medicare and PBS Safety Nets. This is because a ‘member of a person’s family’ does not include a member of a same-sex family. The definition refers to a person’s ‘spouse’ but that does not include a same-sex partner. There are also complications with the definition of ‘dependent child’ as it does not automatically include lesbian co-mothers or gay co-fathers.

The inquiry recommends that the definitions and clauses in the Health Insurance Act 1973 (Cth) and National Health Act 1953 (Cth) that define de facto partner, de facto relationship, dependent child, member of a person’s family and spouse be amended to recognise same-sex relationships and same-sex parents.

For more information see section 11.8 of the Same-Sex: Same Entitlements Report.

• 4.6 More information on GLBTI discrimination in health care

• The Yogyakarta Principles
• Private Lives: A Report on the Health and Wellbeing of GLBTI Australians
• What’s the Difference: Health Issues of Major Concern to Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI) Victorians
• Gay and Lesbian Health Victoria: campaigns on consent and visitation
• Australian Medical Association position statement: Sexual Diversity and Gender Identity
• Sex and Gender Identity Document for Australian Government Employees

5. What stories have we heard about in aged care?

• 5.1 Aged care policies and sexual or gender diversity

The Inquiry has heard that sexual and gender diversity is not adequately reflected in aged care policies. In some cases, this may be because people do not acknowledge the existence of older GLBTI Australians.

For example, the Australian Medical Association submitted to the Inquiry that:

[t]here is a need to recognise sexual and gender diversity within the aged care sector as this lack of recognition means that the health needs of many older people are not being adequately addressed with culturally appropriate care.7

The Gay and Lesbian Rights Lobby (NSW) also argued that ‘it is important that aged care policy and education reflects the diversity in aged care needs’.8

Dr Jo Harrison, an academic in the field on ageing, stated in her submission that the User Rights Principles 1997 under the Aged Care Act 1997 (Cth) make no mention of same-sex couples.9 She argues that the Charter of Resident Rights contained within the User Rights Principles 1997 should make explicit reference to GLBTI concerns.

Lesbian and Gay Solidarity (Melbourne) told the Inquiry that outlawing discrimination on the grounds of sexuality could be a useful addition to the Code of Ethics for the aged care industry, which was developed in 2001.10

• 5.2 Aged care services and the needs of gender diverse people

the Commission has been told that gender diverse people face discrimination in accessing appropriate aged care.

Dr Jo Harrison told the Inquiry that:

Transgender and intersex people are also particularly vulnerable to discrimination in aged care settings, to the point where they may avoid seeking assistance altogether. There is anecdotal evidence of denial of services, forcibly preventing cross-dressing and deliberate physical violence when people are revealed to be transgender.

Transgender people may also have medical issues related to their original gender that emerge with ageing, such as osteoporosis or prostate cancer. These may not be addressed because they may be too intimidated to seek medical advice of any kind.11

• 5.3 Aged care facilities and same-sex couples

The GLBTI community has expressed concern that aged care facilities do not accept and recognise the legitimacy of same-sex couples. GLBTI people have also experience difficulties in accessing shared space in aged care facilities.

As one person told the Inquiry:

I have recently started thinking about what will happen if or when one of us requires some sort of assisted accommodation or nursing home care and the prospect of that alienation in our elderly years because we will no longer be recognised as a couple is distressing to say the least.12

The ALSO Foundation told the Inquiry that:

There is an assumption in many aged care facilities that older people have heterosexual partners or no partner at all and there is usually no precedence for same-sex couples to cohabit at such facilities. While it would be extremely traumatic for elderly GLBTI people to live without their long-term partners, their vulnerability at this time due to a lack of viable alternatives will often mean they will not complain about discriminatory practices.13

A number of Inquiry submissions noted that the Council on the Ageing and the National Seniors Association have already recommended changes to the Code of Practice for Residential Aged Care to include same-sex couples:

Facilities [should] be provided for couples - including same sex couples - requiring different levels of nursing care to enable them to remain together and care for each other in the same establishment should they so choose. Provision of this supportive care to elderly same-sex couples allows them the same dignity and respect as heterosexual couples in comparable situations.14

• Other stories about  the difficulties faced by GLBTI people in aged care

The Inquiry heard about the following difficulties in accessing aged care:

• overt discrimination experienced by GLBTI people accessing aged care15;
• no acknowledgement of a visiting partner16;
• no staff training to ensure recognition and respect for GLBTI residents and their relationships17;
• the failure of official forms (for registration etc) to recognise GLBTI relationships18; and
• potential discrimination when care is provided at home.19

• 5.5 Same-Sex: Same Entitlements aged care recommendations

As discussed earlier, the types of discrimination described in this paper was outside the Inquiry’s terms of reference. However, the Inquiry did make specific recommendations regarding discrimination against same-sex people in relation to the financial entitlements and benefits is accessing residential aged care.

Same-sex couples are treated differently to opposite-sex couples when determining the fees for residential aged care, which mostly results in same-sex couples paying higher fees. This is because the definitions in aged care legislation fail to include same-sex couples and families.

The Inquiry recommends that the definitions and clauses in the Aged Care Act 1997 (Cth) that define close relation, de facto relationship, dependent child, member of a couple, partner and young person be amended to recognise same-sex relationships and same-sex parents.

For more information please see section 14.5 of the Same-Sex: Same Entitlements Report

• 5.6 More information on GLBTI discrimination in aged care

• Discrimination and Older Gays: Surviving Aged Care
• The Yogyakarta Principles

6. What stories have we heard about discrimination in the workplace?

• 6.1 Harassment of GLBTI in the workplace

During the Inquiry people in same-sex couples described experiences of discrimination in the workplace, including harassment, diminished career opportunities and general homophobic treatment.

The Coalition of Activist Lesbians described the following example of harassment in a NSW government department to the Inquiry:

A lesbian working in a NSW government department described to me having obscene emails sent to her, including sexualised cartoons of lesbians, pornography and at one point a sex toy was left on her desk. When she spoke with her supervisor she received more harassment and left her place of employment.20

• 6.2 Diminished career opportunities

The Inquiry heard about an employee who was held back from promotion because he was gay:

Another instance that really shook me and showed me how little things had changed in many ways was occurred to a senior colleague of mine during my employment with [one major bank]. My colleague, [name withheld], as an indication of the regard he was held in for his professional abilities… was the relationship manager to the bank’s largest single customer group. He was taken aside and advised that rumours had circulated in regards to his sexuality. He was further advised that if any basis was found for the rumours, it would affect his possibility for promotion. In light of this, he decided to leave and was hired by an international bank. Many people would ask why he did not take legal action or lodge a complaint, but I would imagine that the financial services industry is much like any other close knit community - any hint of non conformity is quickly spread by people seeking to advance themselves at the expense of others trying to achieve their goals through legitimate hard work.21

• 6.3 Fear of ‘coming out’ in the workplace

During the Inquiry, the Commission heard that some GLBTI people felt they needed to hide their relationships and their identity because of homophobia. Some stories were about direct homophobia such as an overt direction to not reveal sexual identity. Other stories were examples of perceived homophobia based on workplace policies and procedures only accounting for heterosexual relationships.

A lesbian woman who was employed as a teacher in a private school told the Inquiry of the long term damage that discrimination has had on her career:

Some of the other teachers were aware that I am a lesbian. One of my superiors advised me that if any of the pupils found out I am a lesbian, I would be sacked. I knew that the school had the power to do so, and it made me feel very uncomfortable and insecure. I had to be very careful about everything I said, making sure I never used the word ‘we’ when describing any activity or event in my life. I was forced to be constantly on my guard, in case I inadvertently implied that I had a partner or that I was in a same-sex relationship. This experience of discrimination continues to affect me today. Although I relate very well with young people, I have not worked with children since that time. This has restricted my employment options and stopped me from pursuing work in areas that I love. This discrimination also affects the community, because young people miss out on the positive qualities and input that I have to offer. Young people also get inaccurate and destructive messages when it is implied that all people are heterosexual, or when those who are not are silenced, as I was.22

One person described her concern to the Inquiry about ‘coming out’ in the workplace because of the possibility of discrimination:

Some workplaces ask for your 'next of kin contact' and then ask 'relationship to you'. I am forced to either 1. come out or 2. put my partner as next of kin and lie about our relationship or 3. not put my partner as next of kin. I placed my partner’s Aunty as a next of kin contact so she can contact my partner in an emergency. This means I do not have to come out and risk my employment. However, I would prefer if they simply did not ask about your relationship to your next of kin.23

Another explained:

Ultimately, the pressure of hiding my relationship became unbearable, and I resigned from the school. This had a huge financial impact on me. I lost wages and benefits, and for a while I was in a very precarious financial position until I found a position where I could be open about who I am.24

• 6.4 Inadequate protection against workplace discrimination in federal law

Several submissions to the Inquiry expressed concern about the quality of legal protection against discrimination of GLBTI people. Although most states and territories provide some protection from discrimination on the grounds of sexuality, at the federal level there is limited recourse.

Some submissions to the Inquiry made comments about the absence of a wider federal anti-discrimination laws protecting against discrimination on the basis of sexual orientation.25 Such legislation would protect GLBTI employees against the discrimination described above. It would also require amendment of employment-related laws to remove discrimination and may assist GLBTI employees to assert their rights in the workplace.

• 6.5 Making complaints about discrimination based on sexuality

If you have experienced workplace discrimination based on ‘sexual preference’, you can make a complaint to the Commission.

Click here to access the Commission’s complaint information

For complaints that arise out of state and territory anti-discrimination laws, please contact the Anti-discrimination and Equal Opportunity agencies in your state or territory.

Click here to access links to state and territory Anti-discrimination and Equal Opportunity agencies

• 6.6 Same-Sex: Same Entitlements workplace recommendations

As discussed earlier, the types of discrimination described in this paper was outside the Inquiry’s terms of reference. However, the Inquiry did make specific recommendations regarding discrimination against same-sex people in relation to the workplace financial entitlements and benefits.

Same-sex couples and parents are not guaranteed the same carer’s and compassionate leave as opposite-sex couples because of narrow definitions of ‘spouse’ and ‘child’ in the WorkChoices legislation. Lesbian co-mothers and gay co-fathers are not guaranteed parental leave under WorkChoices because of the definition of ‘paternity leave’.

Federal members of Parliament, statutory office holders and judges in same-sex couples only sometimes get the same travel entitlements as their opposite-sex counterparts. This is because the definition of spouse does not include same-sex partners. There are some entitlements that ADF personnel in same-sex couples do not enjoy because the definition of spouse excludes a same-sex partner.

The Inquiry recommends that the definitions and clauses in the Defence Act 1903 (Cth), Defence Force (Home Loans Assistance) Act 1990 (Cth), Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 (Cth), Members of Parliament (Life Gold Pass) Act 2002 (Cth), Parliamentary Entitlements Act 1990 (Cth) and Workplace Relations Act 1996 (Cth) that define child, de facto partner, de facto relationship, dependent, member of a family, family member, spouse, step-child, widow, widower, immediate family, and paternity leave be amended to recognise same-sex relationships and same-sex parents.

The Inquiry also recommends the introduction of federal legislation to protect against discrimination in employment on the grounds of sexual orientation.

For more information please see section 6.7 of the Same-Sex: Same Entitlements Report

• 6.7 More information on GLBTI discrimination in the workplace

• The Pink Ceiling is Too Low,
• The Yogyakarta Principles

7. What stories have we heard about the difficulties experienced by gender diverse people?

• 7.1 Lack of understanding about gender diversity

the Commission has heard that a lack of understanding about gender identity may result in negative community attitudes towards gender diverse people and transphobia. The transgender community has spoken of the need for diverse gender identities to be recognised even though gender diverse people do not strictly adhere to gender norms or community attitudes.

What does ‘transgender’ mean?

The term ‘transgender’ is generally used to refer to someone who does not desire surgical intervention to ‘change sex’ and/or who believes that they fall ‘between’ genders. A person who is transgender does not usually identify fully, or strictly, as either male or female.

During the Inquiry, Sex and Gender Education Australia described a transgender person as ‘a person who may be one sex but may live as a different gender. This term is also used as an umbrella term to denote sex and gender diverse people’.26

What does ‘transsexual’ mean?

A person who is transsexual is someone who has transitioned from one sex to another. 27 The process of physical transition for transsexual people usually includes hormone replacement therapy and may also include sexual or gender reassignment surgery. The process can take several years.

Transsexuals can be MTF (male to female) or FTM (female to male). They may be heterosexual, gay, lesbian or bisexual following their transition.

What does ‘intersex’ mean?

‘born with sex chromosomes, external genitalia, or an internal reproductive system that is not exclusively either male or female’.28 The person may identify as being ‘neither male or female, or as both’.29 Some people who are intersex undergo surgery to make them either male or female.

• 7.2 Problem facing married people who are gender diverse

the Commission has been told that most state and territory laws that facilitate legal recognition of a change in affirmed gender require that the individual be unmarried. Married people who wish to achieve legal recognition of their affirmed gender must divorce. This is because it is not possible for a married couple to have the same gender.

A number of individuals told the Inquiry about their difficulties in having both their relationship and their affirmed gender recognised. For example, the Inquiry heard the story of Grace, a lesbian post-operative transsexual woman who (as a man) married her female partner prior to her sex reassignment surgery. Her birth certificate now cannot be amended to reflect her ‘affirmed gender’ because she is married. Grace explained to the Inquiry:

It is grossly unfair to force people in my position to choose between having a marriage or their gender recognised by the law, where anyone else would simply be granted both. This is especially evident when the rights of children and recognition as a family and the attendant rights granted by the marriage act, are concerned. All of this complex situation disadvantages me, my legal partner and whatever family we may have with regard to workplace benefits that are presently available to the average heterosexual couple.30

• 7.3 Difficulties in obtaining passports for gender diverse people

During the Inquiry, the Commission heard that people who are gender diverse have trouble obtaining appropriate travel documentation.

The ALSO Foundation explained that a person undergoing gender reassignment surgery overseas:

…may obtain a temporary passport in their new sex and once the surgery has been completed they will be eligible to apply for a full ten year passport in their new sex. However, transgender people that have not undergone reassignment surgery are not able to have their identified gender recorded on their passport. A new passport does not mean that the Federal Government recognises transsexual gender identity in any other capacity and this document cannot be used as proof of gender identity for other purposes such as marriage.31

The requirement that gender reassignment surgery be completed before a person can obtain a passport ignores the gender identity of many transgender people that are unable to have gender reassignment surgery for medical or financial reasons. It also ignores the situation of those that are comfortable presenting as their affirmed gender without undergoing surgery.

The Inquiry heard of the difficulty experienced by Jack, who does not consider himself to be male or female, although he presents as masculine:

I have never travelled overseas – should I wish to do so, my passport would define me as female, according to my birth certificate. Imagine the fuss at customs! In an ideal world I would like to be able to change my passport to reflect me as male, to represent the masculine way I feel and am in the world. Currently this is impossible without first changing my birth certificate.32

• 7.4 More information on gender identity

• Sex and Gender Identity Document for Australian Government Employees
• The Yogyakarta Principles

8. Join the GLBTI mailing list to stay updated about the Commission’s ongoing work

Over the coming months, the Commission will be exploring the areas described in this paper.

To stay updated about that work, please join the GLBTI Mailing List by emailing samesex@humanrights.gov.au.

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