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Protection from discrimination on the basis of sexual orientation or sex and/or gender identity in Australia

Research Paper prepared by Anna Chapman, University of Melbourne

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Table of contents

1 Introduction

The Australian Human Rights Commission (the Commission) is conducting a short consultation regarding federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity.

Current federal law protects against discrimination on the basis of race, sex, disability and age. However, there is little protection in federal law from discrimination on the basis of sexual orientation and sex and/or gender identity. In contrast all Australian states and territories prohibit discrimination on the basis of sexual orientation and some prohibit discrimination on the basis of gender identity.

This Research Paper was prepared for the Commission by Anna Chapman from the University of Melbourne. It is intended as a resource for individuals and organisations who wish to participate in this consultation. A shorter Discussion Paper which outlines details of the consultation process and includes a list of discussion questions is available at: http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/discussion_paper.html

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2 A note on terminology

LGBTI is used as an abbreviation for lesbian, gay, bisexual, transgender (or more broadly trans people) and intersex.

The term ‘sexuality’ is used in this research paper as a generic term to describe a person’s sexuality, their sexual preference, or their sexual orientation. It includes the sexuality of people who identify as gay, lesbian and bisexual.

The phrase ‘gender identity’ is used in this paper as a broad term to refer to diverse sex and/or gender identities and expressions. It includes being transgender, trans, transsexual and intersex. It also includes being androgynous, agender, a cross dresser, a drag king, a drag queen, genderfluid, genderqueer, intergender, neutrois, pansexual, pan-gendered, a third gender, and a third sex. In addition, there are culturally specific terms, such as sistergirl and brotherboy, which are used by some Aboriginal and Torres Strait Islander people.

The significance of terminology and that the use of inappropriate terminology can be disempowering is acknowledged. In other publications, the Commission has used the phrase ‘sex and/or gender diversity’ to represent these diverse identities. However, this paper uses the phrase gender identity largely because most of the existing state and territory laws use terminology related to gender.

The following abbreviations are used for legislation referred to in this paper:

The complainant is the person who lodges a complaint under anti-discrimination law. The respondent is the person or entity against whom a complaint under anti-discrimination law has been lodged.

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3 Levels of discrimination experienced by LGBTI people

Empirical evidence reveals that the levels of discrimination and violence experienced by LGBTI people in Australia are high. A 2005 survey of over 5000 people who self-identified as LGBTI found that 59.3% of survey participants reported experiencing personal insults or verbal abuse, whilst threats of violence or intimidation were reported by 23% of people. Physical attack or other kinds of physical violence were experienced by 13.7% of people who took part in the survey. Around 10% of survey participants reported being refused employment or a promotion because of their sexuality. About the same proportion of people reported having objects thrown at them and receiving obscene mail or telephone calls. People who identified as trans-males, trans-females, intersex males and intersex females generally reported experiencing higher rates of these behaviours, and especially employment discrimination where 23.5% of trans-males, 34.9% of trans-females, 18.2% of intersex males and 28.6% if intersex females reported being refused a job or a promotion. The majority of participants (67.3%) indicated that fear of prejudice or discrimination caused them to modify their daily activities, at least some of the time. Of those people who modified their conduct, 72.9% did so in public, and 53.7% did so at work.[1]

An earlier study in New South Wales revealed similarly high levels of verbal abuse, harassment and violence experienced by gay men and lesbians. Young gay men and lesbians were identified in the report as being particularly vulnerable to abuse and violence. The study also revealed issues of violence that related to both racism and homophobia experienced by Indigenous gay men and lesbians, Asian gay men, and lesbians and gay men of Middle-Eastern background.[2]

Other empirical studies reveal similarly high levels of violence and discrimination against LGBTI people in Australia.[3]

There is in addition a growing body of research evidence that indicates that LGBTI people experience anxiety and depression at higher rates than the heterosexual population, and as a result are at greater risk of suicide and self-harm. This is particularly so for same-sex attracted young people, who experience both higher rates of depressive symptoms, and higher rates of suicidal behaviour than do their heterosexual peers. The experience (and fear) of heterosexism, discrimination and prejudice have been shown to be clear risk factors for depression. For example, discrimination in the context of work, including actual and potential dismissal due to sexuality is significantly associated with higher depressive symptoms. A large Australian research project conducted recently concluded that the most effective response to addressing depression and suicidal behaviour amongst LGBTI people is to institute measures to combat homophobia, transphobia and social prejudice in the general community.[4]

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4 State and territory anti discrimination law

State and territory anti-discrimination legislative schemes prohibit discrimination in public realms of life such as paid work and education. The legislation also applies to the commercial provision of goods, services and accommodation. This includes shops, banks, health care and aged care facilities, hotels and motels, public transport and state or territory police. Some clubs are also covered by the statutes. Discrimination is prohibited on a number of grounds (or attributes), including differently worded grounds that relate to sexuality, gender identity and LGBTI relationships.[5] In addition to prohibiting discrimination, some statutes also prohibit conduct that amounts to vilification or harassment. Each statute contains a number of exemptions that may apply in particular circumstances to exonerate the otherwise discriminatory behaviour of a respondent such as an employer, the proprietor of a hotel or shop, or the provider of rental accommodation.

The onus is on the complainant (the person who brings the complaint) to establish each of these matters as relevant, except in relation to an exemption, where the onus lies on the respondent (the alleged discriminator) to establish its existence, if relevant.

Relatively few complaints are lodged under state and territory anti-discrimination statutes on the grounds of sexuality and gender identity.[6] It is widely recognised that the number of complaints that are lodged is only the ‘tip of the iceberg’ of the number that could be lodged. People may be reluctant to pursue a complaint under the legislation due to factors such as fear of coming out, fear that complaining will lead to retaliation, and a lack of knowledge of the legal protections that are available.[7]

This paper examines each of the key concepts in the following order: discrimination; grounds; vilification; harassment; exemptions.[8] The exact wording of the grounds is contained in the Appendix to this research paper.

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4.1 Discrimination

Discrimination is usually defined in state and territory anti-discrimination statutes to cover two different meanings: direct discrimination and indirect discrimination.

Direct discrimination is where a person is treated less favourably than another person who does not have that attribute, where the circumstances relevant to the two people are the same or similar, and one of the reasons for that treatment was the person’s attribute.[9] This would cover a situation where for example an employer treated a lesbian less favourably in a recruitment selection process than a heterosexual person with similar qualifications, and the less favourable treatment was because of her sexuality.

Indirect discrimination is where a person is required to comply with a policy or practice with which a substantially higher proportion of persons who do not have the attribute comply or are able to comply, the condition or practice is not reasonable in all the circumstances, and finally, the person does not or cannot comply with it.[10] This may for example cover a situation where an employer has an informal policy of rewarding employees who take part in work sporting activities, and weekend sports trips away. Where staff are not comfortable with sharing change rooms, toilets and accommodation with a trans or intersex colleague, they may ostracise that person and thereby effectively exclude them from participation. An employer may be held responsible for such an unwelcoming workplace culture as a form of indirect discrimination.

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4.2 Grounds

(a) Grounds – Sexuality

The specific wording of the sexuality grounds in the different state and territory anti-discrimination statutes is contained in Table 1 of the Appendix.

The sexuality ground in the New South Wales Act is worded as ‘homosexuality’, where ‘homosexual’ is defined to mean a ‘male or female homosexual’.[11] This means that in New South Wales heterosexuality is not covered by the legislation, and bisexuality is only covered to the extent that the discrimination related to ‘the homosexual aspects’ of the person’s life, or it related to their assumed homosexuality.[12]

The other states and territories word their ground either as ‘sexuality’ (Queensland, South Australia, Australian Capital Territory, and the Northern Territory)[13] or ‘sexual orientation’ (Victoria, Western Australia and Tasmania).[14] Both the terms of ‘sexuality’ and ‘sexual orientation’ are defined in similar ways to include the concepts of ‘heterosexuality’, ‘homosexuality’, and ‘bisexuality’.[15] Three definitions (Victoria, Western Australia, and the Australian Capital Territory) name ‘lesbianism’.[16]

(b) Grounds – Gender Identity

The grounds related to gender identity contained in state and territory anti-discrimination statutes have been enacted more recently than the sexuality grounds. The exact wording of the gender identity grounds is set out in Table 2 of the Appendix.

Most state and territory statutes identify their gender identity ground as a separate ground of discrimination. Victoria, Queensland and the Australian Capital Territory have a ground worded as ‘gender identity’,[17] whilst South Australia has a ground of ‘chosen gender’.[18] The Western Australian Act provides a very narrow ground in that it only prohibits discrimination on the ground of ‘gender history’ against ‘a gender reassigned person’.[19] The New South Wales statute has a ground of ‘transgender’ and also some additional discrimination protections that relate to a ‘recognised transgender person’.[20] As discussed below, the concepts of ‘a gender reassigned person’ and ‘recognised transgender person’ refer to people who have received legal recognition of their preferred sex, either through a formal alteration of their record of sex, or through being issued with a recognition certificate. A prerequisite to that legal recognition is that a sex reassignment or affirmation procedure has been undergone.[21]

Apart from these narrower concepts of ‘a gender reassigned person’ and ‘recognised transgender person’ (discussed further below), the gender identity grounds generally cover a person who lives, or seeks to live, as a member of their preferred gender, and/or has assumed characteristics of that gender (whether by way of medical intervention or not).[22] As the Anti-Discrimination Board (NSW) has pointed out in relation to that state’s statute:

A person does not have to have had any ‘sex change’ or other surgery, does not have to have taken any hormones in the past or to be taking them now. It does not matter what the person’s gender was at birth nor which gender is their preferred gender. It does not matter why a person is transgender. It does not matter how a person describes or ‘labels’ themself (for example, as transgender, trany, transsexual, or something else).[23]

Neither the Northern Territory statute nor the Tasmanian Act contains a separate gender identity ground. They both include ‘transsexuality’ within their sexuality ground.[24] The Northern Territory statute does not define ‘transsexuality’. The Tasmanian definition of ‘transsexuality’ is relatively broad and includes identifying as a member of the ‘other sex’.

There are no statutes that explicitly use the language of intersex, although all except Western Australia, the Northern Territory and Tasmania, refer to people of ‘indeterminate sex’,[25] and this description is thought to encompass intersex conditions.[26]

A Bill currently before the United States Senate contains an interestingly worded gender identity ground. The Bill for the Employment Non-Discrimination Act of 2009 (S. 1584) adds new grounds of sexuality and gender identity to the current federal protections against discrimination in the employment context. In the Bill the term ‘gender identity’ is defined to mean ‘the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth’.[27] Several districts and states in the United States already include similarly broad understandings of gender identity in their anti-discrimination provisions.[28] The wording of the federal Bill has a number of advantages over the narrower Australian definitions that only protect people who identify as a member of the ‘opposite’ or ‘other’ sex. In addition to avoiding the use of words such as these that assume two stable and exclusive categories of sex, the United States Bill protects people who experience discrimination because of the way they express their gender, including through their appearance and mannerisms, regardless of whether they identify as having a sex that is different to their designated sex at birth. This would protect, for example, women who are discriminated against because they are seen as being butch, and men who are treated less favourably because their employer views them as effeminate.

Three Australian state statutes contain additional provisions in relation to their gender identity grounds that specify particular conduct as an instance of discrimination. In those circumstances a complainant does not need to separately establish that direct discrimination or indirect discrimination has occurred. The South Australian Act provides that requiring a person of a ‘chosen gender’ to assume characteristics of the sex with which the person does not identify is unlawful.[29] The New South Wales Act provides that treating a ‘recognised transgender person’ as if they were their former sex is discrimination,[30] and the Western Australian Act provides similarly that to treat ‘a gender reassigned person’ as being of the person’s former sex is unlawful.[31] See Table 2 (in the Appendix) for the exact wording of the concepts of ‘a gender reassigned person’ and ‘recognised transgender person’. These legal concepts refer to people who have had a sex reassignment procedure or sex affirmation procedure and have received legal recognition of their new sex, either through a formal alteration of the birth register and their birth certificate, or through being issued with a recognition certificate.[32] These formal processes of recognising a person’s new sex draw on separate state and territory legislation that enables people who have undergone sex reassignment or affirmation procedures to be legally recognised as their post-procedure sex. This includes people with intersex conditions who have had a procedure to correct or eliminate ambiguity in relation to their sex.[33]

Apart from these provisions in South Australia, New South Wales and Western Australia, treating a person as their former sex may be an instance of indirect discrimination on a gender identity ground. The situations where this might arise include for example, where a trans person is refused access to toilets and change rooms of the sex with which they identify. As the New South Wales Anti-Discrimination Board has written, ‘[i]t is arguable that the refusal to recognise the sex of a non-recognised transgender person which occurs in a situation where the same service/facility/employment opportunity is provided to both men and women will amount to indirect transgender discrimination.’[34] The basis of the argument is that the requirement that is being imposed is that only people born of that sex are permitted to use that facility, and that this detrimentally impacts on trans people, and does so unreasonably.

(c) Grounds – LGBTI Relationships

State and territory parliaments have enacted legislation to recognise same-sex relationships in most cases. The notable exception remains adoption, where four jurisdictions continue to explicitly discriminate against same sex couples.[35]

State and territory anti-discrimination jurisdictions now provide grounds that prohibit discrimination against a broad range of couple relationships, including same sex relationships.[36] The exact wording of the provisions is set out in Table 3 (in the Appendix). Victoria, Western Australia and the Northern Territory use a ground called ‘marital status’,[37] whilst New South Wales identifies its ground as ‘marital or domestic status’.[38] In South Australia the ground is worded as ‘marital or domestic partnership status’,[39] whilst Queensland, the Australian Capital Territory and Tasmania identify their ground as ‘relationship status’.[40]

Each of these grounds (apart from the Tasmanian ground) is defined to include being single, married, married but living separately and apart from one’s spouse, divorced, widowed, or a ‘de facto’ or ‘domestic’ partner, or in a ‘de facto’ or ‘domestic’ relationship. [41] In the Australian Capital Territory being in a ‘civil partnership’ is additionally named in that statute’s relationship ground.[42] Some state and territory anti-discrimination statutes explain the meaning of their ‘de facto’ or ‘domestic’ partner and relationship concept. For other statutes the meaning of the relevant concept lies in other legislation. The meanings are set out in Table 4 (Appendix). These include same sex relationships and more broadly relationships of people who are transgender, trans, transsexual and intersex. All definitions are limited to recognising couple relationships, and most require that the couple live together.

(d) Grounds - Extension to Presumed and Past Grounds

All state and territory anti-discrimination statutes cover situations where an employer or other respondent assumed or thought that a person had a particular sexuality or gender identity, and on that basis discriminated against them. In those circumstances discrimination will be unlawful regardless of whether the person actually is of the sexuality or gender identity that the respondent presumed.[43] For example, the New South Wales Act covers the situation where a person is ‘thought to be a homosexual person’, whether or not the person identifies as such,[44] and the South Australian Act covers situations where there was a mistaken assumption about a person’s sexuality or chosen gender.[45] This means for example that people who do not self-identify as lesbian, gay or trans can nonetheless complain of discrimination on the basis that the respondent assumed they were lesbian, gay or trans and for that reason treated them in a discriminatory manner.

Four statutes also cover situations where discrimination is related to sexuality or gender identity that the person had in the past (but no longer has).[46]

(e) Grounds - Extension to Associates

In addition to prohibiting discrimination on sexuality and gender identity grounds, all state and territory anti-discrimination statutes prohibit discrimination against a person where that conduct was a response to the sexuality or gender identity of the complainant’s ‘associate’ or ‘relative’.[47] Some statutes define these concepts of ‘associate’ and ‘relative’, whilst others do not. For example, the concept of ‘associate’ is defined in the New South Wales Act to mean ‘any person with whom the person associates, whether socially or in business or commerce, or otherwise’, and ‘any person who is wholly or mainly dependent on, or a member of the household of, the person’.[48] The New South Wales Act defines a ‘relative’ to mean ‘any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person’.[49] This means for example, that it would be unlawful to discriminate against a person because they are the parent of an intersex child, their partner identifies as transgender, or they have gay and lesbian friends.

(f) Grounds - Extension to Characteristics of the Ground

The state and territory anti-discrimination statutes also extend the prohibition on discrimination to conduct that is done on the ground of characteristics that appertain generally to people of that sexuality or gender identity, and to characteristics that are generally imputed to people of that sexuality or gender identity.[50] This covers situations where for example a respondent makes stereotypical assumptions about a person based on their sexuality and/or gender identity, and on the basis of that assumption treats the person less favourably. Such assumptions might include for example that gay men are promiscuous, that lesbians do not have children, and that trans people are sex workers. It is unlawful to discriminate as a consequence of making stereotypical assumptions.

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4.3 Vilification

In addition to prohibiting discrimination on the grounds of sexuality, gender identity and relationships, four jurisdictions – New South Wales, Queensland, the Australian Capital Territory and Tasmania – also prohibit vilification on these grounds.[51] The other state and territory statutes do not prohibit vilification on their sexuality, gender identity and relationships grounds.

Vilification might take place through graffiti, views expressed over radio shows, web pages with public access, and verbal abuse in a public place such as lobbies and parking areas attached to blocks of flats. The concept of vilification refers to communications that incite ‘hatred towards, serious contempt for, or severe ridicule of,’ a person or group of people on the ground of their sexuality and/or gender identity. In order to fall within the legislative provisions, those communications must have been heard, or potentially heard by the public, or must have been conduct that was or could have been observable by the public, or that was conduct comprising the distribution of material to the public.[52]

Case decisions under the vilification provisions show that it is very difficult to prove vilification because of the high evidential threshold required. It is not sufficient that the respondent’s conduct conveyed hatred or expressed serious contempt. Rather, it must be shown that the respondent’s conduct was capable, in an objective sense, of urging or arousing other people to feel hatred towards the complainant, on the ground of their sexuality and/or gender identity.[53] Notably the racial hatred provisions in the Racial Discrimination Act 1975 (Cth) do not require the element of incitement.[54] They are similar to sexual harassment provisions across Commonwealth, state and territory anti-discrimination schemes.

In addition to containing vilification provisions, New South Wales, Queensland and the Australian Capital Territory establish an offence of ‘serious’ vilification where the vilification threatens physical harm towards a person or their property, or incites others to threaten such physical harm.[55] In Queensland it must be established that the perpetrator knowingly or recklessly incited hatred.[56] The penalties for offenders include maximum fines and the potential of imprisonment. In New South Wales and Queensland a prosecution cannot take place without the consent of the state Attorney-General or Director of Public Prosecutions.[57]

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4.4 Harassment

The Northern Territory and Tasmanian statutes provide very limited prohibitions against harassment. The Northern Territory statute prohibits ‘harassment’ on the ground of sexuality,[58] whilst the Tasmanian statute prohibits harassing behaviour on the ground of the person’s relationship.[59] The remaining state and territory anti-discrimination statutes are silent on the issue of harassment related to sexuality, gender identity and relationship.

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4.5 Exemptions

As the High Court has noted on a number of occasions, anti-discrimination legislation is remedial in character, and is designed to achieve the public purpose of redressing discrimination and upholding equal opportunity. As such it ought to be construed beneficially, with exemptions interpreted narrowly.[60]

Different exemptions apply to discrimination compared to vilification. These are examined separately.

(a) Exemptions Applicable to Discrimination

Each state and territory anti-discrimination statute contains a number of exemptions that might be raised and argued by an employer or other respondent in seeking to justify or exonerate their discriminatory conduct.[61] The legislation provides that it is not unlawful to discriminate if an exemption applies.

The range of exemptions, and their wording, varies considerably from statute to statute. For example, whilst the Victorian Act contains numerous exemptions, the Tasmanian statute contains relatively few exemptions relating to sexuality, gender identity and the relationship ground. Some of the exemptions that may be applicable in relation to claims under the grounds of sexuality, gender identity and/or relationship relate to the following matters.

Discrimination in employment:

Discrimination in the provision of reproductive services and adoption services:

Discrimination in education:

Discrimination in accommodation:

Discrimination in sport:

Discrimination in superannuation and insurance:

Discrimination that has statutory or tribunal authority:

The Victorian Act also has a very broad religious belief exemption that applies outside the context of religious institutions such as religious schools. It exonerates discrimination where the reason for the discriminatory decision related to the respondent’s religious beliefs and principles.[74] The Western Australian statute has an exemption that relates to the provision of accommodation and the provision of education by a religious body,[75] and the Northern Territory statute exempts accommodation provided by a religious body.[76]

The Queensland statute has a provision that relates to its ground of gender identity in the context of employment that involves the care or instruction of children. The Act provides that conduct is not unlawful if the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of the children.[77]

All statutes (apart from the New South Wales Act) contain a distinctive type of exemption that takes effect to permit positive measures designed to benefit groups identified with an attribute, with the objective of furthering equality.[78] These are equal opportunity measures designed to promote equality, and include for example the provision of LGBTI police liaison officers, and health and well-being programs targeted at LGBTI communities. To a similar end is the exemption that permits a club (such as a LGBTI club) to exclude from membership a person who is not a member of the LGBTI community, where the club operates principally to prevent or reduce disadvantage experienced by LGBTI people, or to preserve a minority culture.[79]

(b) Exemptions – Applicable to Vilification

The prohibitions on vilification have their own separate set of exemptions. These are more consistent across the statutes that prohibit vilification. The three exemptions are:

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5 The recognition of LGBTI rights in Commonwealth law

For over ten years distinct aspects of Commonwealth law have recognised some rights of LGBTI people, including through protection against dismissal from employment on the ground of ‘sexual preference’, and the recognition of an ‘interdependent relationship’ in migration law.[81] Although the Commonwealth Parliament enacted two statutes in 2008 to recognise same sex couple relationships across more than 70 Commonwealth statutes, including taxation and social security legislation,[82] Commonwealth recognition remains limited, with the Commonwealth lagging a long way behind state and territory parliaments in recognising the rights of LGBTI people. In particular, Commonwealth marriage law discriminates against same sex relationships, Commonwealth industrial law fails to prohibit discrimination on the ground of gender identity, and Commonwealth anti-discrimination law is virtually non-existent. These matters are discussed in turn.

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5.1 Marriage Law

The Commonwealth legal concept of marriage is defined to mean ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.[83] Prior to an amendment in 2004 the Act did not specify the sex of the parties to a marriage. That was added in an attempt by the Commonwealth government to foreclose any argument that a same sex marriage solemnised outside Australia (in a country such as the Netherlands, Belgium, Spain or Canada) may count as a marriage within Australian law.[84]

The understanding of marriage as a union between a man and a woman raises the issue of what it means to be a man or a woman for these purposes. Some of these legal issues were considered in Attorney-General (Cth) v Kevin and Jennifer,[85] a case in which the Full Court of the Family Court was asked to make a declaration regarding the validity of the marriage between Kevin and his partner Jennifer. The case made on behalf of Kevin and Jennifer did not dispute the premise that marriage meant the union between a man and a woman.[86] Rather, the issue was whether Kevin was a man for the purpose of the Marriage Act 1961 (Cth). The issue arose because Kevin’s original birth certificate had identified his sex as female. In the judgment he was referred to as a post operative transsexual, who had been issued with a new birth certificate recording his sex as male under the Births Deaths and Marriages Registration Act 1995 (NSW). In the view of the court, the question of Kevin’s sex was to be addressed at the date of the marriage, and not at the date of his birth (as had been held in an earlier English decision).[87] According to the court, the concept of man is to be given its ‘ordinary contemporary meaning according to Australian usage’ and on this view Kevin was a man for the purposes of marriage law.[88] It is unclear how a court would approach these questions in relation to a person who identifies as transgender or trans, and has not had a sex reassignment or sex affirmation procedure.[89]

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5.2 Industrial Law

Since the 1990s Commonwealth industrial law has included a range of provisions designed to provide a means to redress some limited aspects of discrimination in employment on the ground of ‘sexual preference’, including in relation to dismissal on that ground, and in the content of awards and agreements that discriminate on that ground.[90] The commencement of the Fair Work Act 2009 (Cth) continued this scheme, and extended the prohibition on discrimination on the ground of ‘sexual preference’ to a potentially broader concept of ‘adverse action’, to apply in relation to all aspects of employment, from hiring, to promotion and training opportunities, and to dismissal.[91] The meaning of the concept of ‘sexual preference’ is not defined in the Fair Work Act.[92] In addition, the Fair Work Act 2009 (Cth) standards of unpaid parental leave following the birth or adoption of a child apply to a same sex ‘de facto partner’, defined to mean ‘a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes)’.[93]

The Fair Work Act scheme covers the grounds of discrimination of ‘marital status’ and ‘family or carer’s responsibilities’. These terms are not defined in the Fair Work Act. Presumably ‘marital status’ takes its meaning from the Sex Discrimination Act 1984 (Cth), which explicitly does not recognise same sex relationships (as discussed below).

The Fair Work Act does not include provisions prohibiting discrimination or adverse action, on the ground of gender identity.

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5.3 Anti-Discrimination Law

Commonwealth anti-discrimination law contains very little, if any, effective coverage in relation to LGBTI rights. Although some of the concerns of LGBTI people may be covered under existing Commonwealth legislation, such as the Race Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth), there are no provisions at the Commonwealth level that render discrimination on the grounds of sexuality, gender identity or relationship status unlawful. It is not sufficient that state and territory legislation provides anti-discrimination coverage on these grounds. This is because the Commonwealth and its statutory agencies such as Centrelink (and their employees) are not covered or bound by state and territory anti-discrimination law.[94]

Enacting grounds in Commonwealth anti-discrimination law to cover sexuality, gender identity and LGBTI relationships would follow the existing pattern of law reform where Commonwealth law covers many grounds that are also protected under state and territory anti-discrimination law, such as sex, race, disability and age. This scheme is successfully managed through Commonwealth legislative provisions that prohibit people from pursuing multiple complaints in relation to the same conduct.[95]

(a) Australian Human Rights Commission Act

From 1990 the Australian Human Rights Commission has had power to inquire into and attempt to conciliate claims of discrimination on the ground of ‘sexual preference’ in employment or occupation, but importantly such discrimination is not unlawful and there is no avenue to seek a tribunal or court hearing.[96] The Commission can also inquire into complaints of breaches of ‘human rights’ by the Commonwealth or a Commonwealth agency. Relevant rights include those contained in the International Covenant on Civil and Political Rights, including the rights to privacy, family life, freedom of movement and equality before the law.[97]

However, in effect that there is no legal recourse for a person who has been discriminated against, or had a ‘human right’ breached, beyond invoking the Commission’s power to attempt a resolution through a process of conciliation. If a respondent refuses to take part in conciliation the Commission has no power to require that co-operation. If a complaint is not able to be resolved through conciliation, all that the Commission is able to do is to issue a report to the Federal Attorney-General which contains non-binding recommendation s. The Attorney-General must table the report in each House of the Commonwealth Parliament.

(b) Sex Discrimination Act

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the ground of ‘sex’.[98] The concept of sex is not defined in the Act, although the Act states that ‘man means a member of the male sex irrespective of age’ and ‘woman means a member of the female sex irrespective of age’.[99] The prohibition on sex discrimination is extended in the Act to include discrimination on the ground of characteristics that apply generally to people of the sex of the person who lodged the complaint, as well as to characteristics that are assumed to apply to that sex.[100] Although there are persuasive academic arguments that discrimination against lesbians and gay men on the ground of sexuality is a form of sex discrimination under the Sex Discrimination Act,[101] that argument has been explicitly rejected by Australian tribunals and courts (including the Full Court of the Federal Court).[102]

There is an argument that a person discriminated against on the ground of their gender identity ought to be able to successfully rely on the sex discrimination provisions in the Sex Discrimination Act. This is uncertain though, and has not been tested in Australian tribunals or courts interpreting the Act.[103] The basis of the argument is that sex discrimination prohibitions are broad enough to protect people who are discriminated against because they do not conform to societal expectations and stereotypes of their sex, including social expectations of self-presentation in terms of dress and behaviour. A similar argument has been successfully made overseas, including in the United States, Canada and the European Union, where transsexuals and people who cross dress have used sex discrimination provisions.[104] In a 2004 United States Court of Appeal decision, a transsexual employee was successful in arguing that the discrimination he experienced at work was a form of sex discrimination. The court stated that:

[s]ex stereotyping based on a person’s gender non-conforming behaviour is impermissible [sex] discrimination, irrespective of the cause of that behaviour; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.[105]

The Sex Discrimination Act also contains a ‘marital status’ ground of discrimination, but that has never covered same sex relationships. Although ‘marital status’ covers a ‘de facto spouse’, that concept is defined to refer to opposite sex couples only.[106] This was not altered with the changes in 2008 to Commonwealth law to recognise same sex couple relationships.[107] The only substantive anti-discrimination matters that were altered by the 2008 legislation related to recognizing same sex relationships for the sole purpose of the provisions that prohibit dismissal from employment on the ground of ‘family responsibilities’ in the Sex Discrimination Act, and the provisions in relation to age discrimination in accommodation contained in the Age Discrimination Act 2004 (Cth).[108]

Were the ‘marital status’ ground of the Sex Discrimination Act to be amended to include protection in relation to same sex relationships, this may have consequences for areas of state and territory law that continue to discriminate against same sex couples, such as adoption. Four states and territories in Australia continue to explicitly reject same sex couples from eligibility as a couple.[109] In contrast, New South Wales, Western Australia and the Australian Capital Territory have extended the ability to apply to adopt a child to same sex couple relationships.[110] Tasmania only permits adoption by same sex couples where one of the adults is related to the child (and the couple are in a registered relationship under that state’s relationship recognition regime).[111] When a law of a state (such as adoption law) is ‘inconsistent’ with a law of the Commonwealth (potentially the Sex Discrimination Act), then the Commonwealth law will prevail and the state law will be inoperative to the extent of the inconsistency.[112] In terms of conflict between Commonwealth and Territory laws, the Commonwealth law similarly has priority.[113]

Prior to 2002 most state and territory jurisdictions excluded women who were not in a relationship with a man from accessing fertility services and reproductive technologies. A 2002 High Court decision determined that such restrictions constituted unlawful discrimination under the Sex Discrimination Act on the ground of ‘marital status’.[114]

For these various reasons it is thus unlikely that discrimination against LGBTI people can be litigated successfully under the Sex Discrimination Act.

(c) Disability Discrimination Act

The Disability Discrimination Act 1992 (Cth) prohibits discrimination on the ground of disability. Characterising gender identity as a disability/impairment may be seen as problematic as it equates being transgender, trans, transsexual and intersex as having a disability. It is noted that the AIS Support Group Australia, a support group for people affected by intersex conditions, is in favour of conceptualising discrimination against people with intersex conditions as discrimination on the ground of disability/impairment, and specifically as a form of genetic discrimination.[115]

In addition, the Disability Discrimination Act may provide important protection to gay men. A gay man who is discriminated against because a respondent such as an employer makes a stereotypical assumption that gay men are HIV+ would be able to use the Disability Discrimination Act, as the Act covers a disability that is imputed to a person.[116]

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[1] M Pitts et al, Private Lives: A Report on the Health and Wellbeing of LGBTI Australians, Australian Research Centre in Sex, Health & Society, Monograph Series Number 57, La Trobe University, March 2006, pp 48-51.
[2] Attorney-General’s Department of NSW, ‘You Shouldn’t Have to Hide to be Safe’: A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in NSW, Sydney, December 2003.
[3] See eg, L Hillier, Writing Themselves In Again – 6 Years On: The Second National Report on the Sexuality, Health and Well Being of Same Sex Attracted Young People, Australian Research Centre in Sex Health and Society, La Trobe University, 2005; Victorian Gay and Lesbian Rights Lobby, Enough is Enough: A Report on the Discrimination and Abuse Experienced by Lesbians, Gay Men, Bisexuals and Transgender People in Victoria, 2000; J Irwin, The Pink Ceiling is Too Low: Workplace Experiences of Lesbians, Gay Men and Transgender People, Australian Centre of Lesbian and Gay Research, University of Sydney, 1999. See also Human Rights and Equal Opportunity Commission, Stories of Discrimination Experiences by the Gay, Lesbian, Bisexual, Transgender and Intersex Community, 2007.
[4] J Corboz et al, Feeling Queer and Blue: A Review of the Literature on Depression and Related Issues among Gay, Lesbian, Bisexual and Other Homosexually Active People, Australian Research Centre in Sex, Health and Society, La Trobe University, 2008. See also Suicide Prevention Australia, Position Statement: Suicide and Self-Harm Among Gay, Lesbian, Bisexual and Transgender Communities, August 2009; W Leonard (ed), What’s the Difference? Health Issues of Major Concern to Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI) Victorians, Research Paper, Department of Human Services, State of Victorian, 2002; L Hillier, Writing Themselves In Again – 6 Years On: The Second National Report on the Sexuality, Health and Well Being of Same Sex Attracted Young People, Australian Research Centre in Sex Health and Society, La Trobe University, 2005.
[5] In addition, other grounds and provisions may be relevant to a complainant’s situation, such as the sexual harassment provisions, the victimisation provisions, and the provisions relating to disability, impairment or HIV/AIDS, to name a few.
[6] See eg, Anti-Discrimination Board of New South Wales, The Neglected Communities, Feb 2003, pp 4, 15; Victorian Equal Opportunity and Human Rights Commission, Annual Report 2008/09, p 16 (Table 3); Anti-Discrimination Commission Queensland, Annual Report 2008-09, p 19 (Table 9).
[7] Anti-Discrimination Board of New South Wales, The Neglected Communities, Feb 2003, p 4.
[8] The new Equal Opportunity Act 2010 (Vic) is expected to commence in August 2011. Its provisions on the meaning of ‘discrimination’ and the ‘grounds’ of sexuality and gender identity are identical to the current Victorian 1995 Act, and for that reason are not discussed. The new Act does however contain some important differences in relation to ‘exceptions’ and those are discussed below, as relevant. Notably also the new Act contains a broad obligation on employers and others to take ‘reasonable and proportionate’ positive measures to eliminate discrimination: Part 3.
[9] See ADA (NSW) s 38B(1)(a), s 39(1)(a), s 49ZG(1)(a); EOA (Vic) s 8; ADA (Qld) s 10; EOA (WA) s 35AB(1) s 35O(1),(2); ADA (Tas) s 14. The DA (ACT) (s 8(1)(a)) and EOA (SA) have a slightly different understanding of direct discrimination as treating a person ‘unfavourably’: EOA (SA) s 29(2a)(a), (3)(a), s 85T(2)(a). But see also EOA (SA) s 6(3).
[10] See ADA (NSW) s 38B(1)(b), s 39(1)(b), s 49ZG(1)(b); EOA (Vic) s 9; ADA (Qld) s 11; EOA (WA) s 35AB(3)(b), s 35O(3); ADA (Tas) s 15. The DA (ACT) has a slightly different understanding of indirect discrimination as disadvantaging a group of people: s 8(1)(b). The EOA (SA) understanding is also slightly different: EOA (SA) s 29(2a)(b), (3)(b), s 85T(2)(b).
[11] ADA (NSW) Part 4C, s 4(1) definition of ‘homosexual’.
[12] Anti-Discrimination Board of New South Wales, The Neglected Communities, Feb 2003, p 22. ‘It is of course, a fine line, but the Act does not currently provide recourse for bisexuals who consider they have been subjected to discrimination because they are not homosexual’ (p 22; emphasis removed). The question of coverage of bisexuality under the ADA (NSW) has not been tested in a tribunal.
[13] ADA (Qld) s 7(n); EOA (SA) Part 3; DA (ACT) s 7(1)(b); ADA (NT) s 19(1)(c).
[14] EOA (Vic) s 6(l); EOA (WA) Part IIB; ADA (Tas) s 16(c).
[15] EOA (Vic) s 4(1) definition of ‘sexual orientation’; ADA (Qld) s 4 and Dictionary definition of ‘sexuality’; EOA (SA) s 5(1) definition of ‘sexuality’; EOA (WA) s 4(1) definition of ‘sexual orientation’; DA (ACT) s 2, Dictionary definition of ‘sexuality’; ADA (NT) s 4(1) definition of ‘sexuality’; ADA (Tas) s 3 definitions of ‘sexual orientation’, ‘transsexuality’ and ‘transsexual’.
[16] EOA (Vic) s 4(1) definition of ‘sexual orientation’; EOA (WA) s 4(1) definition of ‘sexual orientation’; DA (ACT) s 2, Dictionary definition of ‘sexuality’.
[17] EOA (Vic) s 6(ac), s 4(1) definition of ‘gender identity’; ADA (Qld) s 7(m), s 4 and Dictionary definition of ‘gender identity’; DA (ACT) s 7(1)(c), s 2, Dictionary definition of ‘gender identity.
[18] EOA (SA) s 29(2a), s 5(5) definition of ‘chosen gender’.
[19] EOA (WA) Part IIAA, s 4(1) definition of ‘gender reassigned person’, s 35AA definition of ‘gender history’.
[20] ADA (NSW) Part 3A, s 38A definition of ‘transgender’, s 4(1) definition of ‘recognised transgender person’. On the additional provisions, see in particular s 38B(1)(c).
[21] ADA (NSW) s 4(1) definition of ‘recognised transgender person’; EOA (WA) s 4(1) definition of ‘gender reassigned person’.
[22] Note that the ADA (NSW) test is narrower in that it does not apply to people who assume characteristics of their preferred gender: s 38A.
[23] Anti-Discrimination Board of New South Wales, The Neglected Communities, Feb 2003, p 13.
[24] ADA (NT) s 4(1) definition of ‘sexuality’; ADA (Tas) s 3 definitions of ‘sexual orientation’, ‘transsexuality’ and ‘transsexual’.
[25] ADA (NSW) s 38A; EOA (Vic) s 4(1) definition of ‘gender identity’; ADA (Qld) Schedule dictionary definition of ‘gender identity’; EOA (SA) s 5(5); DA (ACT) Dictionary definition of ‘gender identity’. Western Australia, the Northern Territory and Tasmania may cover intesex conditions under their disability/impairment provisions. This is not clear.
[26] Disability/impairment discrimination provisions may also be relevant as intersex conditions can be seen as genetic conditions.
[27] Employment Non-Discrimination Act of 2009 (S. 1584) s 3(6).
[28] See eg, District of Columbia Human Rights Act of 1977 s 2-1401.02(12A) (where ‘gender identity or expression’ ‘means a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth’); Vermont Statutes Annotated title 1, chap 3, s 144 (where the term ‘gender identity’ ‘means an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth’).
[29] EOA (SA) s 29(2a)(d).
[30] ADA (NSW) s 38B(1)(c).
[31] EOA (WA) s 35AB(3)(a). See s 4(1) definition of ‘gender reassigned person’.
[32] ADA (NSW) s 4(1) definition of ‘recognised transgender person’; EOA (WA) s 4(1) definition of ‘gender reassigned person’.
[33] Births, Deaths and Marriages Registration Act 1995 (NSW) Part 5A; Births, Deaths and Marriages Registration Act 1996 (Vic) Part 4A; Births, Deaths and Marriages Registration Act 2004 (Qld) Part 4; Sexual Reassignment Act 1988 (SA); Gender Reassignment Act 2000 (WA) Part 3; Births, Deaths and Marriages Registration Act 1997 (ACT) Part 4; Births, Deaths and Marriages Registration Act 1996 (NT) Part 4A; Births, Deaths and Marriages Registration Act 1999 (Tas) Part 4A. All statutes except the ACT Act provide that a person who is married cannot be issued with a new birth certificate or a recognition certificate, with the effect that two people of the same sex cannot be legally married to each other: Births, Deaths and Marriages Registration Act 1995 (NSW) s 32B(1)(c); Births, Deaths and Marriages Registration Act 1996 (Vic) s 30A; Births, Deaths and Marriages Registration Act 2004 (Qld) s 22; Sexual Reassignment Act 1988 (SA) s 7(10); Gender Reassignment Act 2000 (WA) s 15(3); Births, Deaths and Marriages Registration Act 1996 (NT) s 28B(1)(c); Births, Deaths and Marriages Registration Act 1999 (Tas) s 28A(1)(c). This requirement to be unmarried appears to be inconsistent with the Sex Discrimination Act 1984 (Cth), which prohibits discrimination on the ground of ‘marital status’.
[34] Anti-Discrimination Board of New South Wales, The Neglected Communities, Feb 2003, p 15 (emphasis in original).
[35] See footnote 108 and text below.
[36] State and Territory legislation also prohibits discrimination on the ground of being a parent, and having responsibilities to care for another person (other than for commercial reward). See eg, ADA (NSW) Part 4B; EOA (Vic) s 6(ab),(ea); ADA (Qld) s 7(o); EOA (SA) s 85T(1)(d),(e); EOA (WA) Part IIA; DA (ACT) s 7(1)(e); ADA (NT) s 19(1)(g); ADA (Tas) s 16(i),(j).
[37] EOA (Vic) s 6(e); EOA (WA) s 9; ADA (NT) s 19(1)(e).
[38] ADA (NSW) Part 4.
[39] EOA (SA) s 85T(1)(a).
[40] ADA (Qld) s 7(b); DA (ACT) s 7(1)(d); ADA (Tas) s 16(fa). Note Tasmania also has a ‘marital status’ ground that does not recognise same sex relationships: s 16(f), s 3 definition of ‘marital status’.
[41] ADA (NSW) s 4(1) definition of ‘marital or domestic status’; EOA (Vic) s 4(1) definitions of ‘marital status’ and ‘domestic partner’; ADA (Qld) s 4, Dictionary definition of ‘relationship status’; EOA (SA) s 5(1) definitions of ‘marital or domestic partnership status’, ‘domestic partner’, and ‘close personal relationship’; EOA (WA) s 4(1) definition of ‘marital status’; Anti-Discrimination 1991 (ACT) s 2, Dictionary definition of ‘relationship status’; ADA (NT) s 4(1) definition of ‘marital status’. The ADA (Tas) defines its concept of ‘relationship status’ to mean ‘the status of being or having been in a personal relationship, within the meaning of the Relationships Act 2003’ (s 3). The ADA (Tas) also has a ‘marital status’ ground that does not recognise same sex relationships: s 16(f), s 3 definition of ‘marital status’.
[42] DA (ACT) s 2, Dictionary definition of ‘relationship status’.
[43] ADA (NSW) s 38As 49ZF; EOA (Vic) s 7(2)(d); ADA (Qld) s 8(c); EOA (SA) s 6(4); EOA (WA) s 4(1) definition of ‘sexual orientation’, s 35AB(1); DA (ACT) s 7(2)(c); ADA (NT) s 4(1) definition of ‘sexuality’ includes ‘imputed sexual characteristics’, s 20(2); ADA (Tas) s 14(2), s 15(1).
[44] ADA (NSW) s 49ZF.
[45] EOA (SA) s 6(4).
[46] EOA (Vic) s 7(2)(a); ADA (Qld) s 8(d); EOA (SA) s 29(2a)(a), s 29(3)(a), s 85T(2)(a); DA (ACT) s 7(2)(d).
[47] ADA (NSW) s 38B(1)(a),(b), s 39(1), s 49ZG(1); EOA (Vic) s 6(m); ADA (Qld) s 7(p); EOA (SA) s 29(2a)(e), s 29(3)(d), s 85T(2)(d); EOA (WA) s 35O(2); DA (ACT) s 7(1)(n); ADA (NT) s 19(1)(r); ADA (Tas) s 16(s).
[48] ADA (NSW) s 4(1) definition of ‘associate’.
[49] ADA (NSW) s 4(1) definition of ‘relative’.
[50] See eg, ADA (NSW) s 38B(2), s 39(1A), s 49ZG(2); EOA (Vic) s 7(2)(b),(c); ADA (Qld) s 8(a),(b); EOA (SA) s 29(2a)(c), s 29(3)(c), s 85T(2)(c); EOA (WA) s 9(1)(b), (c), s 35AB(2)(a),(b), s 35O(1)(b)(c); ADA (NT) s 20(2)(b),(c); DA (ACT) s 7(2)(a),(b); ADA (Tas) s 14(2), s 15(1)(b).
[51] ADA (NSW) Part 3A Division 5 (‘transgender’ vilification), Part 4C Division 4 (‘homosexuality’ vilification); ADA (Qld) s 124A (vilification on grounds of ‘sexuality’ and ‘gender identity’); DA (ACT) Part 6; ADA (Tas) s 19, s 3 definition of ‘public act’ (inciting hatred on the ground of ‘sexual orientation’). These vilification provisions do not extend to the relationship grounds.
[52] ADA (NSW) s 38R, s 49ZS, s 49ZT(1); ADA (Qld) s 4A, s 124A; DA (ACT) s 65, s 66; ADA (Tas) s 19.
[53] See eg, Turner v State Transit Authority [2004] NSWADT 89 (10 May 2004); JM and JN v QL and QM [2010] NSWADT 66 (12 March 2010); M v S and G [2008] QADT 24 (23 October 2008); Menzies v Owen [2008] QADT 20 (19 September 2008).
[54] RDA (Cth) s 18C.
[55] ADA (NSW) s 38T, s 49ZTA; ADA (Qld) s 131A; DA (ACT) s 67 (with a slightly different test requiring an intention to threaten physical harm towards the person/group or the property of the person/group, or recklessness as to whether the public act incites others to threaten such harm).
[56] ADA (Qld) s 131A(1).
[57] ADA (NSW) s 38T(2), s 49ZTA(2); ADA (Qld) s 131A(2).
[58] ADA (NT) s 20(1)(b) (in that context harassment is not defined or explained).
[59] The Tasmanian Act provides that a person must not engage in any conduct which ‘offends, humiliates, intimidates, insults or ridicules’ a person on the ground of their relationship, in circumstances in which a reasonable person would have anticipated that the complainant would be ‘offended, humiliated, intimidated, insulted or ridiculed’: ADA (Tas) s 17(1). This approach is similar to the legislative formulation of sexual harassment. See eg, SDA (Cth) s 28A.
[60] New South Wales v Amery (2006) 226 ALR 196 at [138] per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR 280 at [152] per Kirby J; IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, 27 per Toohey J, 35-6 per Gummow J, 52 per Kirby J; Waters v Public Transport Corporation (1991) 173 CLR 349 at 362-5 per Mason CJ and Gaudron J, 378-9 per Brennan J, 383-4 per Deane J, 408-10 per Toohey J.
[61] Some State and Territory anti-discrimination statutes use the terminology of exemptions and exceptions, whilst other statutes refer solely to exceptions. This research paper adopts the terminology of exemptions alone. Note that these exemptions are not generally applicable in relation to allegations of sexual harassment.
[62] ADA (NSW) s 56; EOA (Vic) s 75; ADA (Qld) s 25(2), (3); EOA (SA) s 34(3), s 50, s 85Z(2), s 85ZB(3), 85ZM; EOA (WA) s 72, s 73(1),(2); DA (ACT) s 32, s 33; ADA (NT) s 37A, s 51. These exemptions potentially exonerate employers discriminating against a broad range of employees, from gardeners in schools, to nurses and cleaners engaged in hospitals and aged care facilities. In addition, the EOA (Vic) contains the broadest exemption that makes discrimination lawful (in all employment contexts, and other contexts) where the discrimination ‘is necessary’ for the respondent ‘to comply with the ... [respondent’s] genuine religious beliefs or principles’: s 77. The breadth of this exemption, as it relates to the grounds of sexual orientation, gender identity and marital status, will remain with the commencement of the Equal Opportunity Act 2010 (Vic): s 84. The 2010 Act is expected to commence on 1 August 2011.
[63] ADA (NSW) s 38C(3)(a), s 40(3)(a), s 49ZH(3)(a); EOA (Vic) s 16; ADA (Qld) s 26, s 27; EOA (WA) s 35AC(3), s 35P(3), s 35R(2); DA (ACT) s 24, s 25; ADA (NT) s 35(2).
[64] EOA (Vic) s 17 (relates to sex only); ADA (Qld) s 25; EOA (SA) s 34(2).
[65] ADA (NSW) s 38C(3)(b), s 40(3)(b), s 49ZH(3)(b); EOA (Vic) s 21 (see also s 20). These two exemptions are not contained in the new Equal Opportunity Act 2010 (Vic).
[66] ADA (Qld) s 45A; EOA (SA) s 5(2); ADA (NT) s 4(8).
[67] EOA (WA) s 4(1) definition of services; DA (ACT) s 25A. See also ADA (NSW) s 59A exemption for adoption services offered by a ‘faith-based organisation’ (inserted by the Adoption Amendment (Same Sex Couples) Act 2010 (NSW) (assented on 15 September 2010). The exemptions for conduct that is authorized under another statute are also relevant here; see footnote 72 below. Four States and Territories explicitly exclude same-sex couples from eligibility to adopt; see footnote 108 and accompanying text.
[68] ADA (NSW) s 56; EOA (Vic) s 75, s 76; EOA (SA) s 50; EOA (WA) s 72; DA (ACT) s 32; ADA (NT) s 51. In addition, the EOA (Vic) contains the broadest exemption that makes discrimination lawful (in all employment contexts, and other contexts) where the discrimination ‘is necessary’ for the respondent ‘to comply with the ... [respondent’s] genuine religious beliefs or principles’: s 77. The breadth of this exemption, as it relates to the grounds of sexual orientation, gender identity and marital status, will remain with the commencement of the Equal Opportunity Act 2010 (Vic): s 84. The New South Wales statute exempts employment in, and the provision of education by, all private educational authorities (whether religious or not): ADA (NSW) s 38C(3)(c), s 38K(3), s 40(3)(c), s 46A(3), s 48(3)(b), s 49ZH(3)(c), s 49ZO(3), s 49ZQ(3)(b).
[69] ADA (NSW) s 38N(3)(a), s 48(3)(a), s 49ZQ(3)(a); ADA (Qld) s 87; EOA (SA) 40(3); EOA (WA) s 21(3), s 35AM(3), s 35Z(3); DA (ACT) s 26; ADA (NT) s 40(1).
[70] ADA (NSW) ss 38, 38P; EOA (Vic) s 66(1); ADA (Qld) s 111(3); EOA (WA) s 35AP. See also EOA (SA) s 48; ADA (NT) s 56.
[71] On superannuation: ADA (NSW) s 38Q, s 49; EOA (Vic) s 72, s 73; ADA (Qld) s 59; EOA (WA) s 35AR; DA (ACT) s 29; ADA (NT) s 49; ADA (Tas) s 30. On insurance: EOA (Vic) s 43, s 44; ADA (Qld) s 73; EOA (WA) s 34; DA (ACT) s 28; ADA (NT) s 49; ADA (Tas) s 30.
[72] ADA (NSW) s 54; EOA (Vic) s 69, s 70; ADA (Qld) s 106; EOA (WA) s 69; DA (ACT) s 30; ADA (NT) s 53; ADA (Tas) s 24.
[73] ADA (NSW) s 126; EOA (Vic) s 83; ADA (Qld) s 113; EOA (SA) s 92; EOA (WA) s 135; DA (ACT) s 109; ADA (NT) s 59; ADA (Tas) s 56. Broadly speaking, a temporary exemption will be granted where the circumstances further the statute’s objective of equality.
[74] EOA (Vic) s 77. The breadth of this exemption, as it relates to the grounds of sexual orientation, gender identity and marital status, will remain with the commencement of the Equal Opportunity Act 2010 (Vic): s 84.
[75] EOA (WA) s 21(3)(b), s 35AM(3)(b), 35Z(3)(b), s 73(3).
[76] ADA (NT) s 40(3).
[77] ADA (Qld) s 28.
[78] EOA (Vic) s 19, s 61, s 82; ADA (Qld) s 104, s 105; EOA (SA) s 47, s 85ZB(2), s 85ZK; EOA (WA) s 31, s 35ZD; DA (ACT) s 27; ADA (NT) s 40(1), s 57; ADA (Tas) s 25, s 26. As the grounds in the New South Wales Act – homosexuality and transgender – provide protection only to members of the LGBTI communities, and not to, for example heterosexuals, a special measures exemption is not needed for the purpose of moving towards equality.
[79] EOA (Vic) s 61. See also to similar effect, ADA (Qld) s 97; EOA (SA) s 35(2a).
[80] ADA (NSW) s 38S(2), s 49ZT(2); ADA (Qld) 124A(2); DA (ACT) s 66(2); ADA (Tas) s 55. Note that the ADA (Tas) does not contain a reasonableness requirement, and the ADA (NSW) additionally refers to the purposes of religious instruction and discussion.
[81] Industrial Relations Reform Act 1993 (Cth) Parts 3-4 which amended the Industrial Relations Act 1988 (Cth); since 1995 people in same sex relationships are able to be sponsored by their partner to enter Australia on the basis of an ‘interdependent relationship’: Migration Regulations 1994 (Cth) reg 1.09A. For other instances where same-sex relationships are covered, see the definition of an ‘interdependency relationship’ in Superannuation Industry (Supervision) Act 1993 (Cth) s 10A(1), and ‘close family member’ in Anti-Terrorism Act (No 2) 2004 (Cth) Schedule 3, item 2; Criminal Code 1995 (Cth) s 102.1(1).
[82] Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth); Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth). In addition, in 2008 amendments were made to the Family Law Act 1975 (Cth) to extend that Act’s regime regarding financial and property matters for separating married couples to people at the end of a ‘de facto relationship’ (whether different sex or same sex): Family Law Act 1975 (Cth) s 4AA inserted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).
[83] Marriage Act 1961 (Cth) s 5 definition of ‘marriage’, amended by the Marriage Amendment Act 2004 (Cth). The Family Law Act 1975 (Cth) contains a similar version of marriage: s 43(1)(a).
[84] Marriage Act 1961 (Cth) s 88EA inserted by the Marriage Amendment Act 2004 (Cth). Some have argued that this 2005 amendment may be unconstitutional as attempting to establish a Christian religious understanding of marriage: Peter Bailey, The Human Rights Enterprise in Australia and Internationally, LexisNexis Butterworths, 2009, pp 862-3. It is unclear whether the Commonwealth parliament possesses the legislative power to permit the marriage of same-sex unions under the marriage power in section 51(xxi) of the Australian Constitution. Some commentators conclude that the Commonwealth cannot legislate to include same-sex couples within the meaning of marriage: Andrew Lynch and David Hume, Gilbert and Tobin Centre of Public Law, Submission 179, AHRC, ‘Same-Sex: Same Entitlements’ - The National Inquiry into Discrimination Against People in Same-Sex Relationships Regarding Financial and Work-Related Benefits and Entitlements, p 3. At http://humanrights.gov.au/human_rights/samesex/inquiry/submissions.html (viewed 20 September 2010).
[85] (2003) 172 FLR 300.
[86] (2003) 172 FLR 300 at [67].
[87] The earlier English decision was Corbett v Corbett (Otherwise Ashley) [1971] P 83; [1970] 2 All ER 33.
[88] (2003) 172 FLR 300 at [374]-[379].
[89] (2003) 172 FLR 300 at [382]-[387].
[90] Industrial Relations Reform Act 1993 (Cth) Parts 3-4 which amended the Industrial Relations Act 1988 (Cth).
[91] Fair Work Act 2009 (Cth) ss 153, 186(4), 194, 195, 351, 342, 772. In addition, personal/carer’s leave has been extended to cover same sex relationships as part of the employee’s ‘immediate family’ for these purposes: s 97, s 12 definitions of ‘immediate family’ and ‘de facto partner’.
[92] Also covered are grounds of ‘marital status’ and ‘family or carer’s responsibilities’. These are not defined in the Fair Work Act 2009 (Cth). Presumably ‘marital status’ takes its meaning from the SDA (Cth), which explicitly does not recognise same sex relationships (as discussed below).
[93] Fair Work Act 2009 (Cth) s 70, s 12 definition of ‘de facto partner’. This includes a former de facto partner.
[94] Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 248 ALR 494 (Full Court of the Federal Court). See also Dao v Australian Postal Commission (1987) 162 CLR 317.
[95] RDA (Cth) s 6A; SDA (Cth) s 10(3), s 11(3); DDA (Cth) s 13(3); ADA (Cth) s 12(3). State and Territory agencies generally have discretion to reject a complaint that has been dealt with elsewhere: Neil Rees et al, Australian Anti-Discrimination Law: Text, Cases and Materials, Federation Press, 2008, 10.12.4.
[96] Australian Human Rights Commission Regulations 1989 (Cth) reg 4(a)(ix). These regulations have effect under the Australian Human Rights Commission Act 1986 (Cth). The concept of ‘sexual preference’ is not defined in the regulations, or the Act. The regulations do not contain a ground of gender identity.
[97] Australian Human Rights Commission Act 1986 (Cth), s 11(1)(f), International Covenant on Civil and Political Rights, articles 12, 17, 23, 26.
[98] SDA (Cth) s 5.
[99] SDA (Cth) s 4(1).
[100] SDA (Cth) s 5(1)(b), (c).
[101] Bridget Gilmour-Walsh, ‘Exploring Approaches to Discrimination the Basis of Same Sex Activity’ (1994) 3 Australian Feminist Law Journal 117.
[102] Felix Walter Rohner v Linda Scanlan and The Minister for Immigration and Multicultural Affairs (1998) 157 ALR 24; Roger Muller v Commonwealth of Australia [1997] HREOCA 29 (29 May 1997).
[103] State tribunals interpreting State anti-discrimination statutes have expressed doubt that the ground of sex applies in relation to discrimination against a person on the ground of their transsexualism or transgenderism: Menzies v Waycott [2001] VCAT 415 at [199]; Opinion re: Australian Transgender Support Association of Queensland [1996] QADT 8. The argument that sex discrimination is broad enough to encompass discrimination on a gender identity ground has received a more favourable reception in a more recent decision: M v A and U [2007] QADT 8 at [36].
[104] See Smith v City of Salem [2004] USCA6 278; Maffei v Kolaeton Industry Inc (1995) 626 NYS 2d 391; Rosa v Park West Bank & Trust Co [2000] USCA1 132; Kavanagh v Canada (Attorney-General) 2001 CanLII 8496 (CHRT), P v S and Cornwall County Council [1996] All ER (EC) 397.
[105] Smith v City of Salem [2004] USCA6 278 at [34].
[106] A de facto spouse’ is defined to be ‘a person of the opposite sex to the first-mentioned person who lives with the first-mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person’: SDA (Cth) s 4(1) definitions (emphasis removed).
[107] The Senate Inquiry into the Effectiveness of the Sex Discrimination Act recommended that the ‘marital status’ ground be altered to ‘marital or relationship status’ and that it recognise same sex relationships: The Senate, Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality (2008) recommendation 4.
[108] SDA (Cth) s 4A definitions of ‘immediate family member’, ‘spouse’ and ‘de facto partner’; ADA (Cth) s 29(4) definitions of ‘near relative’ and ‘de facto partner’. These amendments were made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) Schedule 2.
[109] Adoption Act 1984 (Vic) s 11(1) where adoption orders are made in favour of a couple comprising a man and a woman; Adoption Act 2009 (Qld) s 76(1)(g)(ii) where only spouses not of the same gender are eligible; Adoption Act 1988 (SA) s 12, s 4(1) definition of ‘marriage relationship’; Adoption of Children Act 2007 (NT) s 13 where adoption orders are made in favour of a couple comprising a man and a woman. In some jurisdictions it is possible for adoption orders to be made in favour of one person alone: see eg, Adoption Act 2000 (NSW) s 26, s 27; Adoption Act 1984 (Vic) s 11(3) where ‘special circumstances’ exist; Adoption Act 1988 (SA) s 12(3) where ‘special circumstances’ exist.
[110] Adoption Amendment (Same Sex Couples) Act 2010 (NSW) (assented on 15 September 2010) amends the Adoption Act 2000 (NSW) dictionary definition of ‘couple’; Adoption Act 1994 (WA) s 39(1), s 67, Interpretation Act 1984 (WA) s 13A definition of ‘de facto relationship’; Adoption Act 1993 (ACT) s 14, Legislation Act 2001 (ACT) s 169 definition of ‘domestic partnership’.
[111] Adoption Act 1988 (Tas) s 20, Relationships Act 2003 (Tas) s 11, s 4 definition of registered ‘significant relationship’.
[112] Australian Constitution s 109. See Neil Rees et al, Australian Anti-Discrimination Law: Text, Cases and Materials, Federation Press, 2008, 3.7.1-3.7.5; George Winterton et al, Australian Federal Constitutional Law: Commentary and Materials, Lawbook, 2nd edn, 2007, chap 2.
[113] Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 at 75 per Lockhart J, 110 per Von Doussa; Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 at 179-80, cited in George Winterton et al, Australian Federal Constitutional Law: Commentary and Materials, Lawbook, 2nd edn, 2007, pp 90-91.
[114] Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.
[115] Anthony Briffa, ‘Discrimination Against People Affected by Intersex Conditions’, submission to the NSW Anti-Discrimination Board and NSW Law Reform Commission (Jan 2003). At http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_mardigrasforum2003 (viewed 20 September 2010).
[116] DDA (Cth) s 4(1) definition of ‘disability’.