Australian Human Rights Commission

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4.4The Yogyakarta Principles

An interpretation of international human rights agreements and how they apply to people of all sexual orientations and gender identities is found in the Yogyakarta Principles, developed in March 2007 by a group of human rights experts.27

The Yogyakarta Principles are not legally binding themselves, but are persuasive in shaping our understanding of how human rights obligations apply and relate to people of all sexual orientations and gender identities.

The Yogyakarta Principles reaffirm the rights of all people to equality before the law and the equal protection of the law without discrimination.28 They also set out the actions that countries should take to implement these rights, including:

  • embodying the principles of equality and non-discrimination on the basis of sexual orientation and gender identity into national constitutions or other appropriate legislation

  • adopting appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity.29

The Preamble recognises the historical human rights violations faced by people who are lesbian, gay, bisexual, trans or intersex. However, the Principles themselves do not use these terms. Instead, the Yogyakarta Principles are phrased in neutral language that aims to recognise the rights of all peoples.30

5Stories of discrimination, vilification and harassment

Understanding the experiences of discrimination, vilification and harassment suffered by people of all sexual orientations and sex and/or gender identities is an important first step in considering how legal protection from discrimination on these grounds might be framed. The consultation heard personal experiences of discrimination and harassment from some participants, while others relayed the challenges faced by partners, relatives, friends, associates, members and clients.

Experiences of discrimination differed greatly depending on whether the discrimination was based on a person’s sexual orientation or on a person’s sex and/or gender identity.

The consultation heard about:

  • discrimination in employment

  • discrimination in the provision of goods and services

  • vilification and harassment

  • bullying and harassment experienced by young people

  • the impact of discrimination, vilification or harassment on mental health and wellbeing.

5.1Discrimination in employment

Many participants reported experiences of discrimination in employment. These reports are supported by research indicating that such discrimination is commonplace. For example, a national survey of LGBT people in 2006 found that 10.3% of participants had been refused employment or denied a promotion based on their sexuality.31 Another workplace study found that:

  • 52% of gay and lesbian employees surveyed were the subject of discrimination in their current employment because of their sexual orientation

  • more than 17% of participants felt their careers had probably been restricted because of their sexual orientation.32

(a)Discrimination in employment on the basis of sexual orientation

Many participants in this consultation described being denied employment or promotion opportunities or being dismissed or disciplined because of their sexual orientation. For example:

Robert and Matthew alleged they were dismissed from their cleaning job … because they were a gay couple. The couple alleged that their employer regularly brought up the topic of their sexuality in work conversations, reduced their hours, and told them they wouldn't be given older people's houses to clean because they would not be acceptable to older people.33

I worked for seven years in the 1970s for the Australian Public Service. I felt very vulnerable to discrimination during that time and believe that my sexual orientation was the uncited reason in at least one instance of not obtaining a promotion. I understand that great improvements have been made in the culture of the APS since that time, but I believe that all federal public servants should enjoy at least the same explicit protections under the law as their state counterparts.34

The Inner City Legal Centre described how a client felt vilified and harassed by the actions of her employer:

Tania was employed by a church run disability service. After working for 18 months Tania attended work and found that the homepage on her work computer displayed a bible quote that said negative things about gay people. Tania assumed that this was a mistake and drew her team leader’s attention to the quote. The next day the quote remained. Tania wrote a letter to the management explaining that she felt upset and unsafe having to look at that quote everyday and asked that it be replaced with a bible quote that did not vilify gay people. Three of Tania’s colleagues also signed the letter. Tania was singled out and told that her gay agenda had no place in a Christian work place. Tania’s professional reputation was then attacked, she was accused of poor work performance. Tania was also assigned shifts that she had previously indicated she would be unable to take or were inappropriate. Tania contacted the [Anti-Discrimination Board] to see if she could lodge a complaint and was told that her employer may be able to rely on the religious exception in the Act. Tania left her job due to ongoing harassment.35

(b)Discrimination in employment on the basis of sex and/or gender identity

A number of trans and intersex participants explained the unique challenges they faced in the workplace, including not being recognised as their preferred gender, being forced to disclose private information and being denied employment opportunities. For example:

Many companies are not willing to employ trans people, especially those of us who do not "pass" as the gender we are transitioning to, because we're considered too "difficult" for the workplace. Others will employ us, but force certain requirements on us - the use of a badge with a gender-specific name, gender-specific uniforms, forcing us to use the wrong toilet, etc.36

    While a public servant I was referred to as “the freak” by several co-workers and received ongoing harassment by one particular employee after I had mentioned that I was Intersex. As I understood it then, there was no protection for harassment on the basis of being intersex as the sexual harassment laws only protected males and females, and not Intersex.37

The WA Gender Project described a trans man who:

[H]as his trans status repeatedly disclosed to other employees in the workplace. He reports that every time a new employee starts work, they are told that he is transsexual and that he “used to be a girl”. He says that new employees will often then begin to use female pronouns to refer to him after hearing this private information.38

Other participants described being told they are no longer suitable for the role after their sex and/or gender identity has been revealed. For example:

I was working in a local retailer when I first began my social transition from female to male. I cut my hair very short, and started using my current name. The general manager of the company sent a photograph of me, and my new name in an email to all the managers in the group. I wasn’t comfortable with this, but he said that the rest of the group needed to know who they were talking to over the phone and email. I had been hired for an assistant manager position, so that made sense. I was horrified a few weeks later when I was told that I was not only being demoted from the position I was hired for, but being made a casual staff member (with no rostered shifts) because I wasn’t ‘fit for full time work’. I protested, and he said: “face it, you aren’t the girl we hired”.39

Organisations representing people who are intersex also reported discrimination in employment for which there is no remedy:

[A] person may be discriminated against in the workplace with impunity if their sex is Intersex. Although current legislation provides for the protection of males and females against sex discrimination it makes no provision for those who have physical anatomies that are neither.40

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