Protection from discrimination in aged care

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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

LGBTI groups welcome the passage of the new law

Previously on Nurse Uncut: When I am old and gay (or lesbian or trans…)

The Aged Care Compact – FAQs

Image credits: 10thousandcouples.com, www.sgn.org www.guardian.co.uk/

6 COMMENTS

  1. The subject is only starting to be raised in recent times. It would have been unheard of only 10years ago.
    I have no objection to how people see themselves, but I would be cautious about ‘labelling’ Aged Care residents as whatever.
    At the upper age scale, there are multiple organic brain issues to consider.
    Just be careful, that certain ‘behaviours’ are not the result of dementia, rather than what may be considered as ‘sexual preference’ by people who have limited understanding of such matters …

  2. Hi Gordo – it is indeed great that diverse sexuality and gender is more out in the open and these reforms are a big step in protecting people from discrimination.
    In terms of how people identify, I agree that there needs to be genuine sensitivity about not labeling people – and that includes not asuming everyone is heretosexual, in the same way as not assuming you can ‘pick’ someone who is lesbian, gay, bisexual, transgender or intersex.
    Sexuality or transgender or intersex status are much more than sexual expression or sexual behaviours: it’s how someone ‘is’ in the world, in the same way that being heterosexual is much more than sexual behaviour, etc.
    So I think the same caution applies to all people with cognitive changes, heterosexual or LGBTI: there can be unusual or uncharacteristic sexual behaviours that might seem linked to dementia and these don’t necessarily define that person, and this is different to someone’s own ongoing sexuality or gender.
    Creating a culture in aged care where people can be themselves is a fundamental step and I agree, it’s not about ‘labeling people’ based on what you think or see – but is about connecting enough that people can share who they are, including their sexuality etc.
    For LGBTI people, this is not likely to be as easy as for heterosexual or non-intersex people.
    There’s a Youtube clip where the simple question is asked as a vox pop: “when did you decide to be heterosexual?” This question took many people by surprise: most hadn’t ever considered it – because it’s so integrated into their being and unlike lgbt people, heterosexual people rarely had to think about naming their sexuality, maybe because it is affirmed and assumed pretty much everywhere – “What’s water, asked the fish”.
    Anyway, I found it interesting as it reminded me why a sort of affirmative action is needed for LGBTI older peole, who might have lived much of their lives in secrecy or being criminalised or marginalised.
    It’s great that more legal protection is in place, and training, and that more open discusison is happening!

  3. Very comprehensive response there Stella.
    I agree with what you have pointed out.
    However, the residential Aged Care environment is not ‘standardised’ and there is such a varied level of training and experience with the staff workforce (at the hands-on level).
    Given that most residential Aged Care facilities are operated privately (to include the so-called charitable and welfare NGOs), it is almost impossible to determine the degree of acceptance of GLBTI residents by the majority of the Care Staff, due to the varying level of training, experience and adherence to management ‘mission / vision’ and policy statements.

    The hands-on Care Staff don’t have much time for psycho-social care. It’s tough enough to get the physical care up to scratch in some establishments!

  4. You point out one of the key issues: aged care nurses and care staff are under pressure to get the ‘task driven’ care done, at the cost of real ‘person-centred’ care. This is fundamentally due to unrealistic workloads. I agree that truly providing psycho-social care takes time that many staff don’t have. In terms of this LGBTI Strategy, it does provide details on expectations re non-discriminatory care: which essentially is: “you can hold your personal views, but at work you are not to discriminate on the basis of someone’s LGBTI status.” Training to help raise awareness about ‘non-discriminatory care’ and to learn about diverse gender and sexuality can influence how care is delivered with sensitivity, but I agree, we have to continue to fight for safer workloads and better skill mix, so that all care can be delivered in a genuine person-centred way.

  5. Gordo, since I wrote my last comment, I am aware of the events in the past 12 hours – ie the story on ‘Lateline’ on the ABC and follow-up phone-in on ABC 702 radio – are pointing to a system under extreme pressure and people are speaking up – nurses, care staff, residents, relatives – to say ‘This is a human rights issue’. It keeps coming back to staffing and skill mix: and money: for decent food, for proper skill mix of staff, for enough staff per shift. Nurses and care staff are trying to do their best, but can’t manage in this scarcity.

  6. That’s right and unfortunately, due to such a pressured workplace culture (management’s drive to keep costs down – at any cost ), many staff – especially RNs – feel as if they just can’t do it any more (work in Residential Aged care).

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