Sporting chance for all - Equality for transgender people in sport and work

The recent media coverage of a high profile rugby union player reporting the use of derogatory slurs on-field highlights the issue of discrimination in sport.  This incident is timely as, in January, the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) released a new guideline titled Transgender People and Sport.  This follows the release of the previous guideline, Transgender People at Work (updated in July 2014).

The Equal Opportunity Act 2010 (EO Act) protects transgender and intersex people from discrimination on the basis of their gender identity in a number of areas of public life.  In addition to sport and work, these include education, provision of goods and services, accommodation and clubs.

New guidelines

The two guidelines outline legal obligations under the EO Act in relation to sport and work, as well as practical information about gender identity issues, including lists of useful terms, case studies and decision-making steps.  While not legally binding, a court or tribunal may consider whether the guidelines have been complied with when hearing a discrimination complaint.

Discrimination on the basis of gender identity

The EO Act protects transgender and intersex people from both direct and indirect discrimination on the basis of their gender identity (ss 6(d) and 7).  Direct discrimination occurs when a person is treated, or proposed to be treated, unfavourably because of their gender identity (s 8(1)).  Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed, or proposed to be imposed, which has, or is likely to have, the effect of disadvantaging a person with a particular gender identity (s 9(1)).

It is also unlawful to ask a person to specify their gender identity where there is no legitimate, non-discriminatory reason for needing this information (s 107).

'Gender identity' is defined in s 4 of the EO Act as the identification by a person of one sex (or of indeterminate sex) as a member of another sex on a genuine basis.  This identification could be by:

• assuming characteristics of the other sex, whether by medical intervention, style of dressing or otherwise; or
• by the person living, or seeking to live, as a member of the other sex. 

The rights of transgender and intersex people are also protected under the Charter of Human Rights and Responsibilities Act 2006.

Transgender people and sport

This guideline is aimed at sporting organisations, clubs and staff.  It will also be useful for schools and universities.  The guideline explains that it is unlawful to discriminate against a person on the basis of their gender identity by failing to select them or excluding them from participating in sporting teams and activities, unless a relevant exception applies (s 71).  It also explains that it is against the law to discriminate against a person on the basis of their gender identity in club membership, including sporting clubs (ss 64 and 65), although it may be lawful for clubs to limit membership to a particular sex (s 68).

Transgender people at work

This guideline is aimed at all employers, and is relevant to all government departments and public entities.  VEOHRC has also produced resources for developing a transition plan for transgender employees as well as a policy template.  These documents will be useful for human resources professionals and anyone with responsibility for interviewing or recruiting new employees.

The guideline explains that it is unlawful to discriminate against job applicants and employees because they are transgender (ss 16 and 18).  The only exception is if there is a 'genuine occupational requirement' for employees to be of a particular sex (s 26).

If you are in the Victorian Government and would like further information about your responsibilities under the Equal Opportunity Act 2010, please contact:

Catherine Roberts
Managing Principal Solicitor
8684 0247
catherine.roberts@vgso.vic.gov.au

David Catanese
Principal Solicitor
9032 3040
david.catanese@vgso.vic.gov.au

Should I stay or should I go (ahead)? Staying civil proceedings when they threaten a fair trial

In the recent case of Commissioner of the Australian Federal Police v Zhao, the High Court granted a stay of civil forfeiture (asset confiscation) proceedings to protect a defendant's right to a fair trial in related criminal proceedings. The Court's decision contributes to a body of law that addresses the question how a court should respond when the conduct of civil, disciplinary or inquisitorial proceedings threatens to prejudice the fair conduct of criminal proceedings.

The facts

On 2 July 2013 Mr Xin Jing was charged with offences against the Commonwealth Criminal Code. Shortly after the charges were laid, the Commissioner of the Australian Federal Police commenced proceedings in the County Court of Victoria seeking an order that the family home of Mr Jing and his wife, Ms Qing Zhao, be forfeited under the Proceeds of Crime Act 2002 (Cth) on the grounds that the property represented proceeds of the offences with which Mr Jing was charged.
Mr Jing and Ms Zhao sought an order that the forfeiture proceedings be stayed until the charges against Mr Jing had finally been determined. They argued that defending the forfeiture proceedings would require Mr Jing either to give evidence that might be used against in him in the criminal proceedings or to divulge the details of his defence before the conclusion of the prosecution's case. Mr Jing and Ms Zhao said that to allow the forfeiture proceedings to continue would rob Mr Jing of his right to silence.
The application for a stay of the forfeiture proceedings was refused in the County Court. However, an appeal to the Court of Appeal was successful. The AFP Commissioner then appealed to the High Court.

The High Court's Decision

The High Court determined unanimously that the Commissioner's appeal should be dismissed. In reaching its decision, the Court first noted that the continuation of the forfeiture proceedings would expose Mr Jing to a risk of prejudice in his defence of the criminal proceedings. The Court then held that the interests of justice would not be served by 'requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.'

Relevance of the decision

Zhao builds on a series of recent decisions, including X7 v Australian Crime Commission and Lee v The Queen, in which the High Court has considered the means by which courts may ensure that the conduct of civil, disciplinary or inquisitorial proceedings does not prejudice the interests of an accused in pending criminal proceedings, either by requiring the accused to divulge his or her defence ahead of time or by requiring the accused to provide information that is likely to be incriminating. The cases show that courts have a range of means of ensuring that the fair conduct of criminal proceedings is not prejudiced by the conduct of other proceedings, such as:

• A stay order like the one in Zhao may be made by a superior court in its supervisory jurisdiction or may be made by an inferior court in the exercise of its implied powers. A superior court also has inherent jurisdiction to restrain contempt; this jurisdiction extends to making an order restraining a body with investigative powers (such as a disciplinary board) from seeking to compel a person charged with an offence from answering questions that relate to pending criminal proceedings.
• Where a statutory provision confers investigative powers on an office holder, a court will be reluctant to interpret the provision in a manner that empowers the office holder to compel the production of information that relates to pending criminal proceedings. It is only where clear and unambiguous terms are employed that a statute will be interpreted to require the production of information in breach of an accused's right to silence.
• Even where a provision empowers a statutory office holder to compel a person to provide information that may implicate him or her in the commission of an offence, the information will generally be held to be subject either to 'use immunity' or 'derivative use immunity'. Use immunity prevents information obtained by an investigator pursuant to his or her compulsive powers from being used directly in criminal proceedings. Derivative use immunity prevents evidence found or discovered as a result of the giving of information to an investigator from being admitted.

Finally, where an accused has been required by an investigating body to provide information in breach of his or her right to silence, improper provision of that information to prosecuting authorities may require any subsequent conviction to be quashed.

For queries relating to any of the issues identified in this blog, please contact:

Jonathan Bayly
Principal Solicitor
jonathan.bayly@vgso.vic.gov.au

Rodney McInnes
Principal Solicitor
rodney.mcinnes@vgso.vic.gov.au