In March this year, Nurse Uncut posted an article by Sujay Kentlyn which considered the special position of LGBTI (lesbian, gay, bisexual, transgender or intersex) people as residents in aged care facilities.
Yet even in March, incredibly for a country which likes to think of itself as giving everyone a ‘fair go’, it was still technically legal to discriminate against such people in aged care – by, for example, refusing to take an openly transgender person as a resident.
That changed last week when the Federal Parliament passed a new Sex Discrimination Bill which will protect LGBTI older people when they access aged care services.
Stella Topaz of the NSWNMA outlines what the new law means – both for older LGBTI people and also for nursing staff who are lesbian or gay, transgender or intersex.
New national discrimination laws will protect older LGBTI Australians from discrimination when receiving aged care services – the first laws of their kind anywhere in the world!
This protection is vital for the safe, respectful care of older LGBTI people. Many have lived through very difficult times, including being deemed ‘criminal’ or ‘mentally ill’, and many have experienced physical and mental harm, discrimination at work and personal ostracisation by family and community.
Commonwealth-funded aged care services, including those run by religious organisations, will now be required to provide their services in a non-discriminatory manner. The law [Sex Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Amendment Bill 2013] applies this protection on the grounds of ‘sexual orientation’, ‘gender identity’, ‘intersex status’ and ‘marital or relationship status’.
The Federal Opposition wanted to retain the exemptions that allowed religious organisations to discriminate in service provision, but lost this when the House of Representatives passed the Bill.
Employers will now need to support their staff to be able to meet this non-discriminatory care and funding initiatives are already underway to assist the sector as part of the National LGBTI Ageing and Aged Care Strategy.
However, how does the new law effect the employment of nurses and other staff?
The new laws only apply to ‘service provision’ and do not extend to ’employment and workforce’ matters in aged care. In particular, there are still exemptions in place which are related to ’employment and workforce’ for religious-run aged care providers, allowing them to bypass anti-discrimination laws applying to other providers. This applies to about 33% of aged care providers nationally. (In some rural areas, however, there may be little choice between religious or non-religious service provider.)
There are existing anti-discrimination laws in each state that already give some protection to workers, but they vary and many have gaps (for example, bisexual people are not included in NSW equal opportunity laws). This new national law will bring greater protection and greater consistency across Australia and will positively affect nurses and other staff in about 77 percent of aged care services.
So, there is still much work to do to extend these protections to LGBTI staff working in all aged care services. Religious-run employers may already have policies that indicate their position: for example, Catholic Health Australia and UnitingCare have both stated that they support non-discriminatory employment for all non-senior staff. Nursing staff working at, or considering applying to, religious-run employers could find out if the employer has a non-discrimination policy at work and if it includes sexual orientation, gender identity and intersex status for their employment.
While it is disappointing that employees of religious-run aged care are not covered by the Bill, the magnitude of this win cannot be underestimated. Older people and advocates have been lobbying for over 17 years to achieve non-discriminatory access to aged care services. The new law marks a change in our society, a new era of recognition and respect for access to services, regardless of sexual orientation, gender identity and intersex status.
For more information: Outrageous Ageing
Previously on Nurse Uncut: When I am old and gay (or lesbian or trans…)