Eliminating LGBTI discrimination


Strategies for eliminating discrimination against the LGBTI community in the legal profession and other workplaces from the Victorian Bar

What does LGBTI stand for?

LGBTI stands for Lesbian, Gay, Bisexual, Transgender and Intersex.

The ABC has produced a guide to explain these terms here.

The Victorian Government’s inclusive language guide can be found here.

Why is the Victorian Bar addressing this issue?

Our goal is an assumption-free world where nobody makes assumptions about a person’s sexuality or gender identity, and everyone is treated equally under the law.

The legal profession is increasingly diverse and inclusive. There are many highly successful practitioners who happen to be LGBTI.

In the workplace, we aim for lawyers to be known for their abilities. Ideally, you would be viewed as an excellent lawyer based on your aptitude and work ethic, matters entirely separate from your LGBTI status.  

A workplace that is not welcoming to LGBTI people can hinder an LGBTI person’s capacity to perform to the best of their ability because they feel discriminated against or not comfortable to be themselves at work. 

A person’s sexuality or gender identity is often central to their self-worth. A workplace free of discrimination is therefore important to getting the best out of employees and providing the best service and outcomes for clients. 

Regrettably, a recent survey by Lloyd’s insurance group Dive In found that as many as 45% of LGBTI people conceal their sexuality at work

The good news is that much can be done with a basic understanding of the issues. There are many simple and cost-free ways that non-LGBTI people can improve workplaces.

What is everyday discrimination?

As the name suggests, everyday discrimination occurs in both the formal and casual interactions between people. Everyday discrimination can occur on the basis of many personal characteristics. Frequently it occurs on the basis of sex, sexuality, race, faith, ethnicity, age or disability.

It happens in daily life and in workplaces. Sometimes it’s the little things, said or done in a moment, that play into stereotypes of masculinity or femininity, and of strength and weakness. Sometimes it is perceived as too small to make a fuss about so we let it pass. Sometimes we can’t deal with it in the moment, or we don’t have the skills to. At other times there is no question that it oversteps the mark.  The cumulative impact needs to be considered.  What might appear to be a minor incident, when repeated over and over can have an exhausting ongoing impact.

Everyday discrimination in the legal profession comes into play at critical decision points affecting the progress and careers of LGBTI practitioners, influencing who to employ, to brief, engage as a junior, sponsor, develop, reward, mentor, promote or appoint.

Everyday discrimination is frequently subtle, perhaps invisible, and often accepted. Because it is hard to speak up when it occurs, it can continue unchecked.

Context, culture, generational differences and norms are among some of the factors that underpin everyday discrimination.

Most people do not want to be accused, let alone found guilty of discriminatory behaviour. Yet often, well-intentioned words, actions and decisions are not received that way. Worse, they can be outright offensive.

We hope this resource encourages an open and respectful conversation about everyday discrimination, with the goal of creating fairer, more positive and inclusive organisational environments for all.

Why should you care?

Because the legal profession cares

Barristers, lawyers, judges and other legal professionals experience everyday discrimination in various forms in our workplaces and we think it’s time we eliminated it.

Many organisations such as the bigger law firms have LGBTI networks. The Victorian Bar’s LGBTI Working Group hopes some leadership from us will benefit other barristers, the broader legal profession, and professionals in allied industries such as consulting and accounting firms.


Because it causes harm

The impact of everyday discrimination can be significant and lasting. By not tackling it we allow it to:

  • Take a toll on self-esteem, personal relationships and general health
  • Cause unnecessary mental anguish, stress and mental health
  • Perpetuate unhelpful and outdated gender stereotypes
  • Unnecessarily impede LGBTI career progression


Because it makes sense

Eliminating everyday discrimination enables a workplace to:

  • Break down the barriers to different career pathways and opportunities for leadership
  • Tap into the full pool of talent available
  • Include diverse voices, thinking, perspectives and experiences in the workplace


Because you can make a difference

As leaders, what we say and do sets the tone in our organisations. Our action (or inaction) can be perceived as explicit or implicit approval of everyday discrimination. There can be far greater impact when leaders - particularly men - call it out because it is unexpected and raises standards for all.

In the workplace, we feel the need to build rapport, to connect on a personal level and to have healthy social conversations and connections.

Often different-sex attracted people don’t realise that their sexual orientation is on display most of the time when they do trivial things such as: talking freely about their families, about their partners, about what they did during the weekend, bringing their partners to social events, displaying their photos on their desks.

Would you experiment by removing anything about your personal life in the office for a month? How would it feel to not bring your full self to work?


The excuses we make for everyday discrimination

  • “It’s just the way it is”
  • “It’s not personal”
  • “I didn’t say it to their face”
  • “It’s just locker-room talk”
  • “It was just a joke”
  • “Toughen up!”
  • “Stop being so sensitive”
  • “We need resilient people”
  • “That’s just the way I think, sorry but I’m not going to change”
  • “Those people just never compromise”


Examples of everyday discrimination

Example comment or behaviour

Issue

To a man: “What is your wife/ girlfriend’s name?”

To a woman: “What is your husband/boyfriend’s name?”

Assumption of heterosexuality

 

Perhaps don’t to come out to the client so we can retain the file.”

Assumption that bringing your “whole self” to work is a “Career Limiting Move”

 

Don’t brief that barrister Mr Smith. The judge won’t like someone without a family.”

 

Assumption that LGBTI people are not suitable work colleagues

Assumption that LGBTI people don’t have families, or perhaps, connotation that they are unsuited to have a family

Excluding someone because of their sexual orientation or gender identity

Did you know they’re gay?” 

Assumption that identifying someone as LGBTI is damaging

“I wouldn’t have picked you as gay.”

Assumption as to how LGBTI people appear or behave. Negative connotation of hiding/concealing one’s self

That’s so gay.”

Using the word “gay” as a synonym for “bad”

I’m fine working with you as long as you don’t hit on me.”

 

Insults masquerading as jokes

Assumption that you are desirable, and that an LGBTI person inappropriately conducts themselves 

 

Brief Ms Smith on that building matter, she’ll fit in with the blokes.”

 

Role and gender stereotyping

Did you see what they’re wearing? I couldn’t take him or her seriously.”

 

Preoccupation with physical appearance

Have you thought about toning it down a bit?”

 

Focus on attributes other than ability

Non-consideration for equitable briefing

I heard a rumour that Ms Smith is a lesbian. Is that true?”

Gossiping about someone’s gender or sexuality

You’ve got marriage equality now. What else do you want?”

Assumption that marriage equality was a final destination.

Many issues remain:

  • Transgender rights
  • Exemptions from anti-discrimination legislation
  • Anti-bullying in schools
  • Equal treatment of rainbow families
  • Gay conversion therapy
  • Violence against LGBTI youth and adults
  • Criminalisation of LGBTI people in many countries
  • Non-consensual medical interventions on intersex infants and children.

“She’s trans, but you can’t really tell!”

Potentially insulting of a person “passing off’” as the gender with which they identify

 

Options for dealing with everyday discrimination


“Self-editing”

  • Where a person does not reveal any information about themselves to reveal they are of a diverse sexuality or gender identity, for example, always referring to one’s significant other in gender neutral terms so not reveal one’s sexuality at work.
  • Unfairly places the burden of minimising any discrimination on the person who might be subject to discrimination
  • Takes a huge amount of energy to avoid revealing fundamental information about one’s sexuality and gender identity
  • Perpetuates stigma and discrimination in the workplace


Deflecting

  • Minimises the seriousness of the conduct and the effect it has had
  • Allows the perpetrator to ‘get away’ with their behaviour
  • Puts the receiver in the social position of ‘not being able to handle it’ in addition to the original comment
  • Perpetuates the myth that certain behaviour is consequence-free


Silence and inaction

  • Gives consent to what is said and done
  • Lends support and cover to the transgressor
  • Leaves the individual receiver to deal with it alone
  • Becomes acceptable workplace culture
  • Discourages people from raising it as an issue 


Calling it out

  • Don’t validate humour that is explicitly or implicitly offensive by staying silent, making excuses or laughing
  • Call out the “joke”: “What did you mean by that comment?”
  • If you miss the moment to call it out, don’t let it pass – ensure the maker of the comment and those who heard you are aware of your stance
  • Make it clear that calling someone names, ridiculing or abusing them is not a joke to the receiver ways of calling it out:
    • On your behalf
    • On behalf of another
    • Be direct: “I don’t assume everyone is heterosexual. Do you?”
    • Do it with humour
    • Defer: approach the maker of the comment later to convey your message


Make gender roles and stereotyping a thing of the past

  • Question assumptions about the type of work that people can do, regardless of gender or sexuality
  • Focus on ability, not personal life
  • Question which types of people you are comfortable working with and why
  • The “beer test” may find someone you would like to work with because they are fun at the pub, but does it find the most capable candidate? 


Challenge labelling and stereotypes

  • Reframe a discussion anytime someone at work is referred to as “too bossy” or “too soft” or “too manly” or “too feminine
  • What unconscious bias do you attribute to people who are different to you?


Transgender awareness

Gender identity is broadly defined as meaning the “gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.

There are a range of factors that impact upon how a person expresses their gender, including whether they have undergone a medical process, their general health, their personal circumstances and their preferences. The following matters are likely relevant to the experience of persons expressing their gender identity:

  • Consider asking what someone’s preferred gender pronoun is (“he” or “she” or “they” are common).
  • Gender neutral toilets without a sex assigned to the door are a clear sign that gender is a non-issue.
  • Transitioning gender is a very significant and challenging journey which will impact almost every part of a person’s life.
  • Understanding that gender identity and sexuality are distinct. Don’t make assumptions about a transgender person’s sexuality.
  • Supporting transition in the workplace
  • A good guide to trans language is here.
  • The Transgender Victoria website is here.


Intersex inclusion 

There is a common assumption that intersex people have non-binary gender identities, and even a belief that a third sex classification recognises the existence of people with intersex variations.

Some intersex people do have non-binary gender identities, and it’s important to respect those identities, but it is also important to respect the full diversity of gender identities held by people born with intersex traits, not just identities that meet any preconceived ideas about the nature of intersex differences.

Intersex is actually defined in physical, biological terms. It describes a spectrum of diverse physical sex characteristics, not a neat and arbitrary third sex or gender classification.

Some people born intersex will reject binary sex or gender labels, due to medical or social experiences, or simply as a reflection of their embodiment. For other intersex people they are comfortable being identified as men or women.  


Strategies for junior practitioners

  • The legal profession can appear intimidating, even oppressive, to “outsiders”. Don’t assume this is true. You belong in the legal profession if you want to.
  • Junior practitioners often feel that without enough experience, seniority and organisational clout, they can’t bring their whole self to work.
  • Accept that professional life may involve perpetual “coming out” to more senior practitioners and clients.
  • Consider establishing a reputation for your capabilities if you are not comfortable coming out immediately.
  • Is anything stopping you from being “The excellent lawyer who happens to be LGBTI”? Can you set a powerful new norm by being it?
  • Consider that nothing good comes from concealing your whole self.
  • Allow yourself to be surprised by how accepting people can be.
  • Be aware of the Pride and Diversity Workplace Equality Index (“AWEI”) which ranks many workplaces on their LGBTI friendliness.
  • Consider starting an LGBTI “ally” campaign. For example, Herbert Smith Freehills invited LGBTI allies to display a poster in their offices and many posters remain up years later.


Suggestions for senior practitioners

  • Understand your own biasesand challenge those biases.
  • Does the “beer test” to find employees or colleagues produce the best possible candidate for the job? Could it be re-enforcing your biases?
  • Senior practitioners and leaders can communicate explicitly that they support diversity and inclusion, and don’t discriminate on any basis, including sexuality, sex, or gender identity.
  • Informal comments and signals are noticed by junior practitioners, who are highly attuned to leader’s words and actions.
  • Avoid being exclusive. Build a values system of respect.
  • Role models are powerful signals for junior practitioners. Model the best conduct you can, whether you are LGBTI or not.
  • Simple actions and solutions can permeate a workplace with extremely positive outcomes.
  • Colleagues and workers who are happy at work help to attract and retain more talent. Talent begets talent.
  • Your colleagues have the right to feel safe and happy at work. If you find it challenging to accept a person’s sexuality or gender identity, consider working on understanding the issues and building empathy.
  • Like the general population, some people are very private and don’t want to talk about these issues.

The Victorian Bar’s anti-bullying and anti-discrimination policies

The Victorian Bar’s policies regarding discrimination, workplace bullying and sexual harassment commence effect from 1 July 2018.

Under the Legal Profession Uniform Conduct (Barrister) Rules 2015, sexual harassment, discrimination and bullying by barristers is prohibited in the course of practice.

There is a process for complaints:

  • between barristers;
  • between people who work in chambers and barristers;
  • between barristers and judges; and
  • between solicitors and barristers. 

Both informal and formal processes are available. You can issue a complaint against an individual which will remain anonymous. If you report someone, it won’t be anonymous. It’s an entirely voluntary process.

Bar conciliators are available to triage these matters. They are trained by the VEOHRC.

Other useful links

Victorian Bar Health & Wellbeing

The Victorian Bar’s Health & Wellbeing Committee’s primary goal is to promote the good health and well-being of barristers. The Health Crisis Help Service, an independently-run counselling service, is available 24 hours a day / 7 days a week.

Out for Australia

OFA is an organisation that seeks to support and offer mentoring opportunities for LGBTI professionals as they navigate their way through their careers.

Thorne Harbour Health

Thorne Harbour Health offers counselling for any member of the LGTBI community (formerly Victorian Aids Council).

Switchboard Victoria

Non-judgmental, confidential and anonymous support services for the LGBTI community and supporters

Fitzroy Legal LGBTI Family Law Service

A specialist service by appointment on the first Wednesday of each month.

Transgender Victoria

Founded to achieve justice, equity and quality health and community service provision for trans and gender diverse people.

Pride In Diversity

Australia’s leading workplace program to help employers with LGBTI inclusion.

Victorian Gay and Lesbian Rights Lobby

The VGLRL advocates for equality and social justice for the LGBTI community

Victorian Equal Opportunity and Human Rights Commission

Working to create a community where every person values, understands and respects human rights and equal opportunity. Offers:

  • a free telephone Enquiry Line
  • a free, fair and timely dispute resolution service
  • information and education about equal opportunity, racial and religious vilification and the Charter of Human Rights and Responsibilities
  • education, training and consultancy services.


More information?

For further information please contact Elizabeth Bennett, Chair LGBTI working group ( elizabeth.bennett@vicbar.com.au) or Christopher McDermott, secretary LGBTI working group (chris.mcdermott@vicbar.com.au)