The people fighting for transgender rights scored a major victory this year when activists and unions put their case to universities and other major employers, resulting in enterprise agreements that will enshrine transition leave. By Jonno Revanche.

How the fight for transition leave is being won

Members of the National Tertiary Education Union, including Dani Cotton (far right).
Members of the National Tertiary Education Union, including Dani Cotton (far right).
Credit: NTEU ACT Division

Although Dani Cotton is typically self-effacing about her influence, it was an open letter she wrote – alongside six others – that activists cite as a primary moment in establishing the case for transition leave. After that, it felt suddenly real. No doubt it was an ambitious claim. To her knowledge, no one had previously asked for the same: codified leave for a person to undergo gender transition.

That was July. The first National Enterprise Agreement campaign for transition leave, which has developed into a campaign for annualised transition leave, is now being championed by workers across the country. One little seed became a conversation, then a meeting, then a conversation. Then, another meeting. The activists were getting somewhere. At the University of Sydney, where Cotton works, they have won an in-principle agreement.

The July letter was small fry in comparison with a more recent one officially co-ordinated by the National Tertiary Education Union, which carried hundreds of signatures. A not-dissimilar petition for gender affirmation surgeries to be covered by Medicare had 100,000 signees. Its inclusion as a nationally recommended claim is so far unprecedented in the ongoing union fight for transgender rights.

“The exact wording of the claim that ended up getting recommended is what was suggested by the Australian Services Union, who wrote up a model motion of it, which was for 20 days,” says Cotton, speaking in a personal capacity.

“There were a few major issues with it, and from there we said that we were worried about the nature of the leave, that we had some suggestions, making sure it included social not just medical transition, and, two, as much as possible, leaving it in the hands of the worker.”

Concerns raised in the letter, of which there are three main points, are conclusive. The authors ask to affirm Cotton’s first demand, for transition to be understood not just as medical but as legitimately social, if not metaphysical. The authors ask for procedures, and necessity of the leave, to be negotiated by workers themselves. The third point rang out more clearly: the request for transgender people to “take six weeks off to encompass the validity of all medical choices, including genital surgeries” – with six weeks being the “conservative estimate” for any kind of real recovery.

It was the length and conditions of that leave that was the draw. This kind of leave is not unheard of, but previous arrangements had been so restrictive, so ungenerous, they might as well have not existed.

The current counter-proposal written out by University of Sydney management is for a six-week, one-off leave to staff. This has been described – at least on the university’s intranet – as a “bank” that workers could hypothetically use at their discretion, without the rigmarole of negotiating with bosses. An Australian university offering 30 days’ gender transition leave had been completely unheard of until this year.

It didn’t stop with Cotton’s university, either. With the exception of a small handful of universities where agreements have not yet been made, transition leave has become incorporated into an overall set of claims within every National Tertiary Education Union branch in Australia. The recommendation was put forward at RMIT University, at Macquarie University and at University of Technology Sydney (UTS).

In the Northern Territory the Community and Public Sector Union has fought and won the case for paid transition leave. At Westpac, the Finance Sector Union won four weeks’ leave for transition. At the ABC, there are 10 days of paid leave and a year without pay. Agreements for transition leave, as well as menstrual and menopausal leave, are also being workshopped in workplaces associated with the Australian Services Union and Retail and Fast Food Workers Union.

It’s difficult to know precisely what made 2021 different. Conversations had been happening in the background for years without serious action. Members such as Cotton identify one major turning point as the election of Amy Sargeant to national convener of Queer Unionists in Tertiary Education, the queer network within the union. The group serves as “queer people’s voice to the leadership of the union”.

Sargeant is 24, a sessional tutor in the school of creative practice at the Queensland University of Technology. Her rise encouraged other trans people in the rank and file, emboldening everyone.

But not even this, nor “youthful optimism” can explain the zeal, nor the directness and vicissitude she brought to the caucus, and the enthusiasm from participants in discussing trans issues that followed, now they were in safe company. Sargeant says that since her appointment to the network it’s “almost all that we talk about”.

“Not that long ago the idea that voting on a motion would ever go to the national council of the union, that was about this stuff at all, was crazy. Now it’s the big discussion that’s being had, and we’re getting wins like transition leave,” she says.

“I think just the process of getting it on the agenda, as the thing that we stand for in tertiary education, is huge. But regarding the amount of time involved and stuff, it could be better.

“The fact is it’s very expensive to transition. There’s all these costs that most people would never think about far beyond any medical stuff. There’s all kinds of legal costs. So a lot of activism that’s engaged in this generally is around trying to change systems to make it less of this massive struggle to do all this.”

Evan Van Zijl, a retail worker and activist within the Retail and Fast Food Workers Union queer caucus, stresses that the reach of the agreements being driven by workers will bear more fruit than anything “top down”. There are certain differences. The latter is rarely technically binding, and ultimately at the provision of management, “who could at any time just change the policy”. In these cases, managers are able to determine whether your leave is legitimate, the kind of process that by design is less than encouraging.

Other workplaces – AGL Energy, Origin Energy, the Woolworths Group, for instance – allow transition leave, often through external queer advocacy or “rainbow coalition groups”, although knowledge of this leave being available to the workers themselves is another issue. There are many extensions of the weapons of struggle. The consequences of these being, in the case of Origin, that employer-led agreements cover medical only.

In comparison, an enterprise agreement enshrines key rights. It offers the comfort of knowing what is owed – for instance, giving an employee the power to take an employer to Fair Work if leave was denied – and in a real sense, giving them certainty. It’s this which is the main site of contestation now between many unionists and their workplaces, and could be for years to come.

“You need power to enforce an agreement,” says Van Zijl. “Any worker knows that there are constant breaches of your conditions every day – getting underpaid, getting mistreated, not getting enough notice of things.

“If there’s not enough power to back something up, why should people expect to receive it? So there actually has to be a union campaign from the grassroots to build the power to enforce it.”

This article was first published in the print edition of The Saturday Paper on December 18, 2021 as "A leave of presence".

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