Annualised gender affirmation leave must remain a priority

Annualised gender affirmation leave is vastly preferable to a one-off entitlement.

The benefits of gender affirmation leave are clear, and very rarely substantively challenged: it affords trans and gender diverse people the economic security necessary to pursue gender transition. Despite its clear effect on improving trans and gender diverse people’s experience at work and with gender transition more generally, gender affirmation leave has continued to receive inadequate attention as a component of the NTEU’s log of claims.

At the University of Sydney, queer unionists, primarily through the Queer Unionists in Tertiary Education (QUTE) division of the National Tertiary Education Union (NTEU) won six-weeks of paid gender affirmation leave in September last year. That concession meant that gender diverse employees (excluding casual staff) at USyd have access to the most extensive gender affirmation leave in the tertiary education sector nationally.

However, University management has refused to grant the NTEU’s demand that the six-weeks of affirmation leave be offered annually, as opposed to being a one-off entitlement that is not refreshed no matter how long a staff member works at the University. This comes in spite of five days of strike action at USyd this year and after a petition calling for annualised leave received over 200 signatures from staff, students, and members of the public.

Blame for this should lie first at the feet of University management. USyd proclaims its support for the queer community yet has been unwilling to offer gender diverse employees a leave allocation that could tangibly improve their quality of life. The University has been unable to provide a coherent justification for why they cannot offer yearly gender affirmation leave. Management primarily cites the cost of offering annualised leave entitlements. This is a weak rationale in light of University’s $1.04 operating surplus in 2021. 

Australian Higher Education Industrial Association (AHEIA) executive director Stuart Andrews claimed last year that that gender affirmation leave was “way beyond community norms”.* Yet citing ‘community norms’ is no more than a deflection which AHEIA is using to avoid engaging with the obvious benefit annualised gender affirmation leave provides to trans and gender diverse employees.

Annualised gender affirmation leave is vastly preferable to a one-off bank. Gender affirmation requires time to pursue social, administrative, medical, and other steps towards transition. Six-weeks leave is often not enough time for trans people to recover from gender affirmation surgery. In this context, gender diverse staff are forced to use other leave entitlements, take unpaid leave, or leave their jobs to attend to gender affirmation. This is greatly inequitable; trans staff still get sick, still need holidays and should be entitled to have the same leave as cisgender people to fufill these needs.

Annualised leave, as opposed to a one-off bank, also has an important symbolic role. A one-off allocation suggests that University management views gender affirmation as a one-off process. In reality, gender affirmation is not a linear, nor short term process and annualised gender affirmation leave reflects this.

Queer unionists and trans rights activists have faced further barriers in garnering support for the annualised leave campaign. While the NTEU has pursued its claim for annualised leave at each day of strike action this year, some queer members of the Union have commented on the relative obscurity of this claim within the NTEU’s log of claims more generally. Claims for improved conditions for casual workers, increased pay and the retention of the 40/40/20 model for academic staff have been front and centre in the NTEU’s industrial action campaign. Nevertheless, the Union has also actively advocated for improvements for marginalised workers, with the NTEU holding a day of strike action in semester one specifically focussed on the working rights of First Nations people.

There are several possible reasons why gender affirmation leave has been less prominent in the NTEU’s campaign. The dire state of higher education has necessitated strike action which highlights structural issues within the University’s business model. In this context, gender affirmation leave must compete with other significant workplace issues to receive more attention. Further, it is possible that the fact that University management has granted six-weeks of one-off leave has stifled the momentum of trans unionists, with those less familiar with the issues facing gender diverse people at work perhaps seeing this as a complete victory. Other Union members have privately used this to call for the annualised gender affirmation leave claim to be dropped so that the Union can pursue other, more majoritarian issues. 

Trans unionists have further faced difficulty with conservative elements of the NTEU. In December 2021, NTEU leadership amended a motion to remove criticism of gender critical ideology, a form of transphobic feminism, which was widely condemned by queer members of the Union. This demonstrates that transphobia persists within the NTEU, further hindering its ability to pursue annualised transition leave.

The progress of gender affirmation leave at USyd calls into question the adequacy of the legal frameworks which protect queer people at work more generally. Legislation which enshrines a legal right for all gender diverse workers (including casuals) to annual gender affirmation leave would be a significant instrument by which the government could improve the lives of all trans workers. The government could further add explicit protections for trans, gender diverse and intersex employees into the Fair Work Act 2009 (Cth) to mitigate the effects of still rampant workplace discrimination against trans people.

Gender affirmation leave isn’t a sexy issue. In a society rife with transphobia, persistence and attention is required to ensure that employers do not use gender affirmation leave as a PR exercise. They must instead offer at least six-weeks annualised leave so that trans and gender diverse people can transition securely and be more comfortable at work.

*Following the release of this article, the AHEIA has released an updated statement: “Australia’s higher education sector is committed to, and recognises the many benefits of, meaningful diversity and inclusion.  AHEIA believes it is important to provide staff with practical gender affirmation support, and welcomes the steps taken by its members to expand leave options to staff in an effort to afford trans and gender diverse people the economic security they need to pursue gender transition.”