Skip to main content

Section 7 - Protection from discrimination on the basis of sexual orientation - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

Addressing sexual orientation

and sex and/or

gender identity

discrimination

Consultation Report

2011


Section 7 - Protection from

discrimination on the basis of sexual orientation

The consultation was directly concerned with how protection from

discrimination on the basis of sexual orientation might be included in federal

law. Section 6 above outlines what the consultation heard about the benefits of

these protections. This part outlines:

  • current federal protections from discrimination on the basis of sexual

    orientation

  • current state and territory protections from discrimination on the basis of

    sexual orientation

  • how protection from discrimination on the basis of sexual orientation might

    be included in federal law.

7.1 Current federal protections from

discrimination on the basis of sexual orientation

Very few protections from discrimination on the basis of sexual orientation

exist in federal law.

The Commission can inquire into and attempt to conciliate complaints of

discrimination on the basis of ‘sexual preference’ in employment and

occupation.[110] However, if a

complaint is not able to be resolved through conciliation, all the Commission is

able to do is to issue a report to the federal Attorney-General which is tabled

in Parliament. There is no avenue to seek a tribunal or court hearing about

discrimination of this kind and Commission recommendations are not enforceable.

During 2009-2010, the Commission received 176 enquiries from people about sexual

orientation, lawful sexual activity, trans and intersex issues, accounting for

less than 1% of all enquiries

received.[111]

Since the 1990s, federal industrial law has included limited protection from

discrimination in employment on the basis of ‘sexual preference’.

The Fair Work Act 2009 (Cth) (Fair Work Act) now prohibits

discrimination on the basis of an employee’s ‘sexual

preference’ in relation to all aspects of employment, from hiring, to

promotion and training opportunities, and to

dismissal.[112] The Fair Work Act

also refers to discrimination on the basis of ‘marital

status’[113] rather than

using ‘relationship status’ which would include people in same-sex

relationships.

The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)

prohibits discrimination on the basis of

‘sex’.[114] Arguments

that discrimination against lesbians and gay men on the basis of sexual

orientation is a form of sex discrimination under the Sex Discrimination Act

have been explicitly rejected by Australian tribunals and

courts.[115]

The Sex Discrimination Act also prohibits discrimination on the basis of

‘marital status’, however this does not cover same-sex

relationships. The Commission has recommended that this ground of discrimination

should include same-sex

relationships.[116] A Senate

inquiry report has also recommended that the term ‘marital status’

be replaced with ‘marital or relationship status’ which would

include people in same-sex

relationships.[117]

7.2 Current

state and territory protections from discrimination on the basis of sexual

orientation

All states and territories have laws that prohibit discrimination on the

basis of sexual orientation, although these laws contain a wide range of

terminology to describe the prohibited grounds of discrimination.

New South Wales uses the term ‘homosexuality’, and

‘homosexual’ is defined to mean a ‘male or female

homosexual’.[118] Therefore,

in New South Wales heterosexuality is not covered by the legislation, and

bisexuality is only covered to the extent that the discrimination relates to

‘the homosexual aspects’ of the person’s life, or their

assumed homosexuality.[119]

Other states and territories use the following terms:

  • ‘sexuality’ (Queensland, South Australia, Australian Capital

    Territory and the Northern

    Territory)[120]

  • ‘sexual orientation’ (Victoria, Western Australia and

    Tasmania).[121]

Both

‘sexuality’ and ‘sexual orientation’ are defined to

include the concepts of ‘heterosexuality’,

‘homosexuality’ and

‘bisexuality’.[122] Three definitions (Victoria, Western Australia and the Australian Capital

Territory) also name

‘lesbianism’.[123]

All state and territory anti-discrimination laws cover situations where an

employer or other respondent assumed or thought that a person had a particular

sexual orientation, and on that basis discriminated against them. Federal law

also protects from discrimination on the basis of imputed sexual preference in

the Fair Work Act. Four state and territory laws also cover situations where

discrimination is related to sexual orientation that the person had in the past

(but no longer has).[124]

In addition to prohibiting discrimination on the basis of sexual orientation,

all state and territory anti-discrimination laws prohibit discrimination against

a person where that conduct was a response to the sexual orientation of the

complainant’s ‘associate’ or

‘relative’.[125]

Finally, state and territory anti-discrimination laws also extend the

prohibition on discrimination to conduct that is done on the basis of

characteristics that are generally thought to relate to people of that sexual

orientation.[126]

7.3 How

protection from discrimination on the basis of sexual orientation might be

included in federal law

It would be ideal for legislation to encompass all human beings and the

entire spectrums of both sexuality and gender, and any wording used should

reflect this.[127]

The Commission heard a wide range of views about how protection from

discrimination on the basis of sexual orientation should be included in federal

laws. Suggestions were generally informed by the laws of the state or territory

where individuals or organisations were based.

(a) Terminology: sexual orientation or

sexuality?

The majority of comments to the consultation supported the use of the term

‘sexual orientation’ in anti-discrimination

legislation.[128] Many

participants at the roundtables also preferred the use of sexual

orientation.[129] In explaining

their support for this terminology, participants highlighted the following:

  • it is generally accepted as a broad and inclusive

    term[130]

  • it is consistent with the Yogyakarta

    Principles[131]

  • ‘sexuality’ or ‘sexual preference’ focuses on

    choice[132] or can be

    misleading.[133]

A

number of participants explained their support for the term sexual orientation

as follows:

Sexual orientation is a more inclusive term, given that it incorporates

protection not only for gay and lesbian sexualities, but also

bisexuality.[134]

It should be noted that the term sexual orientation, rather than sexual

preference, should be used to describe a person’s enduring pattern of

emotional, romantic, and/or sexual attractions. It is a phrase that expresses

the inherent part of one’s sense of being, while sexual preference implies

a person’s sexual choice that may or may not be based on their

orientation. It is important to recognise that the two terms have different

connotations and for some they may interact at different points of

people’s lives.[135]

A small number of comments preferred the use of ‘sexuality’ over

sexual orientation.[136] One

participant noted:

The term sexual orientation implies the converse of sexual

‘disorientation’. There is a presumption in this terminology that

everyone has a specific direction in terms of sexual attraction, and if they do

not fit into a category they are lost. Not everyone identifies this way. The

nature of a person’s sexual attractions may be fluid or vary over

time.[137]

Some participants did not express a preference but were comfortable with

either sexuality or sexual

orientation.[138]

(i) Defining ‘sexual orientation’

Participants expressed diverse views about how the term ‘sexual

orientation’ should be defined.

Many participants supported defining sexual orientation to include a broad

range of terms, including ‘homosexual’, ‘lesbian’,

‘bisexual’, ‘asexual’ and ‘same-sex

attracted’.[139] Participants who suggested the term ‘same-sex attracted’ argued that

many people do not identify as gay, lesbian or

bisexual.[140] The Youth Affairs

Council of Victoria found that 30.5% of the young people surveyed identified as

‘same-sex

attracted’.[141]

A number of participants strongly argued that lesbianism should be expressly

included in the definition of sexual

orientation.[142] The Equal

Opportunity Commission (WA) expressed concern that ‘the fight for

recognition and equality by the gay and lesbian community may mask the ongoing

gender inequality that exists within

it’.[143] Women’s

Legal Services NSW noted that lesbian women report being unsure whether they are

protected by the homosexuality ground in NSW legislation or feeling devalued by

the wording.[144]

The main point of difference was regarding whether anti-discrimination laws

should cover heterosexuality. Some participants supported the inclusion of

heterosexuality in sexual orientation

grounds.[145] Others opposed this

and suggested the laws should only protect marginalised

communities.[146]

Freedom! Gender Identity Association took a different approach and supported

the protection of various attributes under sexual orientation rather than

specific labels.[147] They

suggested that sexual orientation should include:

  • attraction (i.e. same-sex attracted, other-sex attracted, both-sex

    attracted, all-sex attracted)

  • identity (i.e. lesbian, gay, bisexual)
  • behaviour (i.e. legal sexual activity).
(b) Lawful sexual activity and HIV/AIDS

status

A number of participants suggested that ‘lawful sexual activity’

should be included in federal discrimination law as a protected ground of

discrimination in addition to sexual

orientation.[148] The Law Council

of Australia noted that ‘lawful sexual activity’ could be broad

enough to cover promiscuous people or legal sex

workers.[149] Some participants,

however, reported that they were offended by the reference to lawful sexual

activity because they felt it has the effect ‘of reducing lesbian and gay

people to ‘sexual acts’, excluding broader notions of identity and

community’.[150]

The NSW Gay and Lesbian Rights Lobby argued that HIV/AIDS status should be

included as a protected ground of

discrimination.[151]

(c) Relationship status

Some participants recommended that references to ‘marital status’

in the Sex Discrimination Act and the Fair Work Act should be amended to provide

protection to same-sex couples equal to that afforded to opposite-sex

couples.[152]

(d) Extension of protection from discrimination on

the basis of sexual orientation

Many participants supported the extension of protection from discrimination

on the basis of sexual orientation to:

  • a person’s perceived sexual

    orientation[153]

  • associates and family

    members[154]

  • prior or historical sexual

    orientation.[155]

For

example, ACON told the Commission:

[Y]oung people may be vilified because they are perceived to be homosexual,

exhibit characteristics that are generally associated with young people who are

homosexual or are friends with someone who is homosexual but may not personally

identify as homosexual, engage in homosexual relationships or be attracted to

someone of their own gender.[156]

In addition, the Law Council of Australia recommended that a person should

not be required to disclose their sexual orientation or sex and/or gender

identity where it is irrelevant or

unnecessary.[157]


[110]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.
[111] Australian

Human Rights Commission, Annual Report 2009-2010 (2010). At: http://humanrights.gov.au/about/publications/annual_reports/2009_2010/complaint-statistics.html (viewed 25 March 2011).
[112]Fair Work Act 2009 (Cth), ss 153, 186(4), 194, 195, 342, 351,

772(1)(f). 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: ss 12,

97.
[113]Fair Work Act 2009 (Cth), ss 153, 195, 351, 578, 772.
[114]Sex Discrimination

Act 1984 (Cth), s 5.
[115]Felix Walter Rohner v Linda Scanlan and The Minister for Immigration and

Multicultural Affairs (1998) 86 FCR 454; Roger Muller v Commonwealth of

Australia [1997] HREOCA 29 (29 May 1997). See B Gilmour-Walsh,

‘Exploring Approaches to Discrimination the Basis of Same Sex

Activity’ (1994) 3 Australian Feminist Law Journal 117.
[116] Australian Human

Rights Commission, Submission to the Senate Legal and Constitutional Affairs

Committee Inquiry into the effectiveness of the Sex Discrimination Act 1984 in

eliminating discrimination and promoting gender equality (1 September 2008).

At: http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 25 March 2011).
[117] Senate Legal and Constitutional Affairs Committee, Effectiveness of the Sex

Discrimination Act 1984 in eliminating discrimination and promoting gender

equality, recommendation 11.15. At: http://www.aph.gov.au/senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 25 March 2011).
[118]Anti-Discrimination Act 1977 (NSW), s 4(1) (‘homosexual’), pt

4C.
[119] ‘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’: Anti-Discrimination Board of New South Wales, The

Neglected Communities (2003), p 22, emphasis removed. At: http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_mardigrasforum2003 (viewed 25 March 2010). The question of coverage of bisexuality under the Anti-Discrimination Act 1977 (NSW) has not been tested in a

tribunal.
[120]Anti-Discrimination Act 1991 (Qld), s 7(n); Equal Opportunity Act

1984 (SA), pt 3; Discrimination Act 1991 (ACT), s 7(1)(b); Anti-Discrimination Act 1992 (NT), s

19(1)(c).
[121]Equal

Opportunity Act 1995 (Vic), s 6(l); Equal Opportunity Act 1984 (WA),

pt IIB; Anti-Discrimination Act 1998 (Tas), s

16(c).
[122]Equal

Opportunity Act 1995 (Vic), s 4(1) (‘sexual orientation’); Anti-Discrimination Act 1991 (Qld), s 4, (‘sexuality’); Equal Opportunity Act 1984 (SA), s 5(1) (‘sexuality’); Equal Opportunity Act 1984 (WA), s 4(1) (‘sexual

orientation’); Discrimination Act 1991 (ACT), s 2

(‘sexuality’); Anti-Discrimination Act 1992 (NT), s

4(1) (‘sexuality’); Anti-Discrimination Act 1998 (Tas), s 3

(‘sexual orientation’, ‘transsexuality’ and

‘transsexual’).
[123]Equal Opportunity Act 1995 (Vic), s 4(1) (‘sexual

orientation’); Anti-Discrimination Act 1991 (Qld) s 4(1)

(‘sexual orientation’); Discrimination Act 1991 (ACT), s 2

(‘sexuality’).
[124]Equal Opportunity Act 1995 (Vic), s 7(2)(a); Anti-Discrimination Act

1991 (Qld), s 8(d); Equal Opportunity Act 1984 (SA), ss 29(2a)(a),

29(3)(a), 85T(2)(a); Discrimination Act 1991 (ACT), s

7(2)(d).
[125]Anti-Discrimination Act 1977 (NSW), ss 38B(1)(a), 38B(1)(b), 39(1),

49ZG(1); Equal Opportunity Act 1995 (Vic), s 6(m); Anti-Discrimination

Act 1991 (Qld), s 7(p); Equal Opportunity Act 1984 (SA),

ss 29(2a)(e), 29(3)(d), 85T(2)(d); Equal Opportunity Act 1984 (WA),

s 35O(2); Discrimination Act 1991 (ACT), s 7(1)(n); Anti-Discrimination Act 1992 (NT), s 19(1)(r); Anti-Discrimination Act 1998 (Tas),

s 16(s).
[126] See, for

example, Anti-Discrimination Act 1977 (NSW), ss 38B(2), 39(1A), 49ZG(2); Equal Opportunity Act 1995 (Vic), ss 7(2)(b), 7(2)(c); Anti-Discrimination Act 1991 (Qld), ss 8(a), 8(b); Equal Opportunity

Act 1984 (SA), ss 29(2a)(c), 29(3)(c), 85T(2)(c); Equal Opportunity Act

1984 (WA), ss 9(1)(b), 9(1)(c), 35AB(2)(a), 35AB(2)(b), 35O(1)(b),

35O(1)(c); Anti-Discrimination Act 1992 (NT), ss 20(2)(b),

20(2)(c); Discrimination Act 1991 (ACT), ss 7(2)(a), 7(2)(b); Anti-Discrimination Act 1998 (Tas), ss 14(2),

15(1)(b).
[127] Name withheld,

Comment 79, p 2.
[128] Law

Institute of Victoria, Comment 144; Victorian Bar Association, Comment 148;

Kingsford Legal Centre, Comment 149; Victorian Equal Opportunity and Human

Rights Commission, Comment 121; ACON, Comment 109; Hawkesbury Nepean Community

Legal Centre, Comment 97; Job Watch, Comment 95; NSW Gay & Lesbian Rights

Lobby, Comment 94; Organisation Intersex International, Comment 82; Amnesty

International Australia, Comment 89; Name withheld, Comment 69; Name withheld,

Comment 68; Name withheld, Comment 65; Name withheld, Comment 54; Name withheld,

Comment 51; Name withheld, Comment 40; Name withheld, Comment 31; Peta Aylward,

Comment 22; Name withheld, Comment 9; Gina Wilson, Comment 8; Dr Paul Howat,

Comment 7; Tasmanian Gay and Lesbian Rights Group, Comment

153.
[129] Sydney roundtable on

sexual orientation, 28 October 2010; Melbourne roundtable on sexual orientation,

9 November 2010.
[130] Above.
[131] Marrickville Legal

Centre, Comment 151; Redfern Legal Centre, Comment 91; Queensland Association

for Healthy Communities, Comment

43.
[132] Freedom! Gender

identity Association, Comment

90.
[133] Melbourne roundtable

on sexual orientation, 9 November

2010.
[134] NSW Gay &

Lesbian Rights Lobby, Comment 94, p

12.
[135] ACON, Comment 109, p

4.
[136] Name withheld, Comment

6; Name withheld, Comment 104; {Also} Foundation, Comment 84; Julie Webster,

Comment 15; WA Gender Project, Comment

125.
[137] Name withheld,

Comment 123, p 1.
[138] South

Australian Equal Opportunity Commission, Comment 110 (supported the use of

sexuality or similar terminology that encompasses the broad spectrum of sexual

orientations); Victorian Women Lawyers, Comment 93; Name withheld, Comment

92.
[139] Child Safety

Commissioner Victoria, Comment 138; Law Institute of Victoria, Comment 144;

Victorian Bar, Comment 148; Equal Opportunity Commission WA, Comment 137;

Colleen Cartwright and Tania Lienert, Comment 31; WA Gender Project, Comment

125, p 9.
[140] See, for

example, Colleen Cartwright and Tania Lienert, Comment 31; OUTthere, Comment 72;

WayOut, Comment 103.
[141] Youth Affairs Council of Victoria, Comment 152, p

5.
[142] Erinyes Autonomous

Activist Lesbians, Comment 143; ROAR Feminist Collective, Comment 141;

Women’s Legal Services NSW, Comment 116; Equal Opportunity Commission WA,

Comment 137.
[143] Equal

Opportunity Commission WA, Comment 137, p

2.
[144] Anna Chapman,

‘Australian Anti-Discrimination Law and Sexual Orientation: Some

Observations on Terminology and Scope’ (1996) 3(3) E LAW: Murdoch

University Electronic Journal of Law, as cited in Women’s Legal

Services NSW, Comment 116, p

3.
[145] Law Institute of

Victoria, Comment 144; Victorian Bar, Comment 148; Equal Opportunity Commission

WA, Comment 137; WA Gender Project, Comment

125.
[146] Inner City Legal

Centre, Comment 142; Australian GLBTIQ Multicultural Council, Comment 113; NSW

Gay & Lesbian Rights Lobby, Comment 94; Women’s Legal Services NSW,

Comment 116.
[147] Freedom!

Gender Identity Association, Comment 90, p 5. See also National LGBTI Health

Alliance, Comment 112, p

7.
[148] NSW Gay & Lesbian

Rights Lobby, Comment 94; Freedom! Gender Identity Association, Comment 90;

Tasmanian Council for Sexual and Gender Diverse People, Comment 33; Tasmanian

Gay and Lesbian Rights Group, Comment

153.
[149] Law Council of

Australia, Comment 132, p

22.
[150] Women’s Legal

Services NSW, Comment 116, p

3.
[151] NSW Gay & Lesbian

Rights Lobby, Comment 94. See also ACON, Comment

109.
[152] See, for example,

Amnesty International Australia, Comment 89; Inner City Legal Centre, Comment

142; Law Council of Australia, Comment 132; ACON, Comment 109; NSW Gay &

Lesbian Rights Lobby, Comment

94.
[153] See, for example,

Anti-discrimination Commission Queensland, Comment 131; WA Gender Project,

Comment 125; Australian GLBTIQ Multicultural Council, Comment 113; ACON, Comment

109; Freedom! Gender Identity Association, Comment 90; Lara Kacelnik, Comment

58; Queensland Association for Healthy Communties, Comment 43; WA Equal

Opportunity Commission, Comment 137; Victorian Child Safety Commissioner,

Comment 138; Name withheld, Comment 2; Law Council of Australia, Comment 132;

National LGBTI Health Alliance, Comment 112, p 7; Melbourne roundtable on sexual

orientation, 9 November

2010.
[154] Law Council of

Australia, Comment 132; ACON, Comment 109; Queensland Association for Healthy

Communties, Comment 43. See also National LGBTI Health Alliance, Comment 112, p

7.
[155] ACON, Comment 109;

Freedom! Gender Identity Association Inc, Comment

90.
[156] ACON, Comment 109A, p

5.
[157] Law Council of

Australia, Comment 132, p

26.