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Section 8 - Protection from discrimination on the basis of sex and/or gender identity - 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 8 - Protection

from discrimination on the basis of sex and/or gender identity

The consultation was directly concerned with how protection from

discrimination on the basis of sex and/or gender identity might be included in

federal law. Section 6 above outlines what the consultation heard about the

benefits of such protections. This part outlines:

  • current federal protections from discrimination on the basis of sex and/or

    gender identity

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

    sex and/or gender identity

  • how protection from discrimination on the basis of sex and/or gender

    identity might be included in federal law.

8.1 Current federal protections from

discrimination on the basis of sex and/or gender identity

There is no protection from discrimination on the basis of sex and/or gender

identity in federal law.

The Sex Discrimination Act defines a ‘man’ as a person of the

male sex and a ‘woman’ as a person of the female sex; definitions

that do not appear to recognise the full spectrum of sex diversity that

exists.[158] However, the Sex

Discrimination Act may protect a person who is discriminated against on the

basis of their legal sex, even if this is different from their sex at

birth.[159]

It is not clear whether a person discriminated against on the basis of their

gender identity could rely on the sex discrimination provisions of the Sex

Discrimination Act. Arguably, these provisions are broad enough to protect

people who are discriminated against because they do not conform to the public

expectations and stereotypes of their sex, including social expectations of

self-presentation in terms of dress and behaviour. However, whether this applies

to trans and intersex people is uncertain as it has not been tested in

Australian tribunals or

courts.[160]

The Fair Work Act does not include provisions prohibiting

discrimination or adverse action on the basis of gender identity.

8.2 Current state and

territory protections from discrimination on the basis of sex and/or gender

identity

Most state and territory laws include separate provisions prohibiting

discrimination on the basis of gender identity. For example:

  • Victoria, Queensland and the Australian Capital Territory prohibit

    discrimination on the basis of ‘gender

    identity’.[161]

  • South Australia prohibits discrimination on the basis of a person’s

    ‘chosen gender’.[162]

  • Western Australian only prohibits discrimination on the basis of

    ‘gender history’ against ‘a gender reassigned person’ (a

    person who has received legal recognition of their preferred

    sex).[163]

  • New South Wales prohibits discrimination against a ‘transgender’

    person and includes some additional discrimination protections that relate to a

    ‘recognised transgender person’ (a person who has received legal

    recognition of their preferred

    sex).[164]

Neither

the Northern Territory nor the Tasmanian laws contain a separate ‘gender

identity’ ground. They both include ‘transsexuality’ within

their sexuality or sexual orientation

ground.[165]

The gender identity ground generally covers 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).[166] As the

Anti-Discrimination Board (NSW) has pointed out in relation to the NSW law:

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).[167]

Three Australian state statutes contain additional provisions in relation to

the gender identity ground that specify particular conduct as an instance of

discrimination:

  • 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.[168]

  • The New South Wales Act provides that treating a ‘recognised

    transgender person’ as if they were their former sex is

    discrimination.[169]

  • The Western Australian Act provides similarly that to treat ‘a gender

    reassigned person’ as being of the person’s former sex is

    unlawful.[170]

The

legal terms ‘gender reassigned person’ and ‘recognised

transgender person’ 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.[171]

No state or territory laws explicitly use the language of intersex, although

all except Western Australia, the Northern Territory and Tasmania refer to

people of ‘indeterminate

sex’,[172] and this

description is thought to encompass intersex

conditions.[173]

As with state and territory protections from discrimination on the basis of

sexual orientation, protection from discrimination on the basis of gender

identity is extended to:

  • situations where an employer or other respondent assumed or thought that a

    person had a particular gender

    identity[174]

  • conduct that is a response to the gender identity of a complainant’s

    ‘associate’ or

    ‘relative’[175]

  • conduct that is done on the basis of characteristics that are generally

    thought to relate to people of that gender

    identity.[176]

(a) Problems with existing state and territory

laws

A number of participants expressed concern about the terminology used in

existing state and territory

laws.[177] For example, the {Also}

Foundation argued that:

Many of the terms derived from existing state and territory law (chosen

gender; gender history; gender reassigned person; a recognised transgender

person; or transsexuality) are problematic for their tendency to limit and/or

define people in ways that they themselves do not identify... and ultimately for

their reinforcement of binary constructions of gender to which many people may

not subscribe.[178]

The National LGBTI Health Alliance and A Gender Agenda raised concerns with a

number of terms currently used in state and territory laws. For example:

  • ‘Chosen gender’ implies a choice, which many gender diverse

    people do not feel they have, believing their condition to be innate.

  • ‘Gender history’ is problematic for those at the beginning of a

    transition and those who are not seeking medical or surgical treatment.

  • ‘A gender reassigned person’ is particularly problematic for

    those who for various reasons (such as cost, personal choice, or pre-existing

    medical conditions) do not seek medical or surgical treatment. Gender diverse

    people require protection whether or not they pursue reassignment

    treatments.

  • ‘Recognised transgender person’ – recognised by whom? This

    also does not cover sex and/or gender diverse people who do not identify with

    terms such as transgender.

  • ‘Transsexuality’ is a term referring to only one group of

    people, and not embraced by all sex and/or gender diverse

    people.[179]

8.3 How

protection from discrimination on the basis of sex and/or gender identity might

be included in federal law

(a) Terminology

The consultation heard a broad range of suggestions regarding terms that

might be included in federal law to ensure protection from discrimination on the

basis of sex and/or gender identity.

Some participants emphasised that terminology should be as broad and as

inclusive as possible. For example, A Gender Agenda told the Commission that:

As a guiding principle terminology should be kept as broad as possible with

reference to the attribute that is being discriminated against rather than

identities (which are always contested and

exclusionary).[180]

The following list provides an overview of the range of terminology that

participants suggested might be included in federal anti-discrimination law:

  • gender,[181] gender

    identity,[182] gender

    history,[183] or gender

    expression/presentation[184]

  • transgender[185]
  • sex or sexual

    characteristics[186]

  • sex and gender

    identity[187]

  • sex characteristics, gender identity and gender

    expression[188]

  • intersex, sex and/or gender

    diverse[189]

  • diversity in sexual formation or

    expression.[190]

(b) Sex characteristics, gender identity and gender

expression

A number of consultation participants, in both written comments and at the

Sydney and Melbourne roundtables, supported the use of the terms ‘sex

characteristics’, ‘gender identity’ and ‘gender

expression’.[191] Consultation participants suggested that the use of these three terms would be

sufficiently broad to include all of the attributes of trans and intersex people

that require protection.

A Gender Agenda explained each of these terms:

Biological Sex Characteristics: This refers to all biological

indicators of sex – for example chromosomal sex, endocrine activity,

genitals and reproductive organs/capacity, menstruation, breasts, facial and

body hair, depth of voice etc.

Gender Identity: This refers to how an individual identifies in their

own gender – for example as a man, woman, transgender, transsexual,

intersex, genderqueer, non-binary.

Gender Expression: This refers to how the individual’s gender is

identified by others – for example as a man, woman, transgender,

transsexual, intersex, genderqueer,

non-binary.[192]

They felt that the use of this terminology would ensure broad coverage:

This wording has been deliberately chosen to ensure people are protected from

discrimination on the basis of:

  • being intersex
  • being transsexual, transgender
  • being gender fluid or gender queer (includes androgynous and

    cross-dressing)

  • expressing a non-traditional gender (eg. A feminine man who is not

    trans)

  • being perceived as any of the above (even if this is not an accurate

    perception)

[and] to ensure that people are protected from

discrimination without reference to:

  • a binary construct of gender which only protects individuals who identify

    and present consistently as either male or female

  • a binary construct of sex characteristics which fails to protect intersex

    individuals

  • the legal sex currently recorded on a person’s birth certificate

    (which some people are unable to change and some people do not wish to

    change).[193]

The

inclusion of ‘sex’ or ‘sexual characteristics’ was

thought to provide appropriate protection to transsexual and intersex

people:

Transsexual and intersex people can be protected by enacting legislation that

prohibits discrimination on the grounds of sex or sexual

characteristics (where the definitions of the above are broadened to include

transsexualism and intersex conditions) irrespective of medical treatment

undertaken or planned.[194]

However, Organisation Intersex International told the consultation that while

it agrees that the use of terms such as sex characteristics and indeterminate

sex might be useful in framing laws so that they are inclusive of people who are

intersex, ‘we insist such terms cannot guarantee our rights unless those

words are linked to definitions that specify unambiguously

“Intersex”’.[195]

(c) Extension of protection from discrimination on

the basis of sex and/or gender identity

A number of participants also supported laws that extend to protecting a

person from discrimination on the basis of:

  • actual or perceived sex and/or gender
  • their association with a trans or intersex person (including friends, family

    members or colleagues of a trans or intersex person)

  • sex and/or gender

    history.[196]

(d) Terminology used in other countries

Given the wide range of views about appropriate terminology to use in federal

anti-discrimination laws, it is useful to consider the terminology used in other

countries. For example:

  • The Canadian Human Rights Act 1985 (Canada) was amended on 9 February

    2011 to include ‘gender identity’ and ‘gender

    expression’ as prohibited grounds of

    discrimination.[197]

  • The Equality Act 2010 (United Kingdom) prohibits discrimination on

    grounds of ‘sex’ and ‘gender

    reassignment’.[198] This is

    defined to include a person who is, proposes to change, or is changing their

    sex. Therefore, a trans person is no longer required to have surgery or be under

    medical supervision to receive protection from discrimination.

  • The Human Rights Act 1993 (New Zealand) prohibits discrimination on

    the grounds of ‘sex’ or ‘sexual orientation’. The

    Solicitor General issued public advice on 2 August 2006 that sex discrimination

    covers transgender

    people.[199]

A number

of participants specifically referred to the terminology used in other countries

as a model for federal laws. For example A Gender Agenda supported

‘gender’ being defined similarly to the New York City Human Rights

Law (2002):

Actual or perceived sex ... and also ... a person’s gender identity,

self image, appearance, behaviour or expression, whether or not that gender

identity, self image, appearance, behaviour or expression is different from that

traditionally associated with the legal sex assigned to that person at

birth.[200]

The Law Council of Australia suggested the following definition of

‘gender identity’ which is taken from the Bill for the Employment

Non-Discrimination Act of 2009 currently before the United States

Senate:

[T]he 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.[201]

8.4 Including protection for people who are

intersex or of indeterminate sex in federal law

As noted above, a number of participants specifically supported the inclusion

of the term ‘intersex’ in federal

laws.[202] For example:

For the very unusual situation that there is virtually no protection for

intersex people SAGE believes that there is a need for any anti-discrimination

legislation to include the word intersex even though it cannot be exactly

defined.[203]

A number of intersex individuals and organisations told the consultation that

they felt that federal laws should include a specific reference to the term

‘intersex’ as the issues faced by intersex people are unique:

I also think there needs to be a statement or acknowledgement that issues

that affect Intersex people are not necessarily the same as those that affect

Trans people, or for that matter Gay, Lesbian or Bi people. While much of the

discrimination which we all face is similar, there are many issues that Intersex

people face that are totally different to those faced by Trans

people.[204]

Other participants highlighted the current invisibility of intersex

issues:

Furthermore, research shows that ‘intersex people report feeling

invisible’ and ‘generally not acknowledged in society, by the media,

the law or governments’. Providing federal protection from discrimination

to those who are intersex may assist in addressing these feelings of isolation

and invisibility, as well as provide a statement of recognition as to the

existence of ‘sex diversity’ in our

society.[205]

Consultation participants emphasised that ‘being intersex is a

statement of fact, not an

identity’[206] and that an

intersex person may identify as male or female even though they have an intersex

condition:

It is important to note that the vast majority of people with intersex

conditions have a gender identity that is either exclusively male or female and

are satisfied with the sex they were raised ... We nonetheless note that a small

percentage of people with intersex conditions may also identify as having a

gender that is intersex. That is, they may have a gender identity that is [not]

exclusively male or

female.[207]

The AIS Support Group Australia suggested the use of the phrase ‘people

with intersex

conditions’.[208]

Some participants thought the terms ‘indeterminate sex’ or

‘disorder of sexual development’ should be avoided because they are

offensive or inappropriate.[209] For example:

The [AIS Support Group Australia] does not support the use of the term

[disorder of sexual development] as it is

pathologising.[210]

There is no Intersex to our certain knowledge who use or approve of

[disorders of sexual development]. Indeed [Organisation Intersex International]

considers it to be repugnant. Redefining our differences as disordered indicates

we are not only somehow variant from the natural order of things it provides

license to affect a cure.[211]


[158]Sex Discrimination

Act 1984 (Cth), s 4.
[159] See for example Sex and Gender Education Australia and Australian Health and

Education Centre, Comment 73, p

3.
[160] 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, [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, see [36]. 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. 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.
[161]Equal Opportunity

Act 1995 (Vic), ss 4(1) (‘gender identity’), s 6(ac); Anti-Discrimination Act 1991 (Qld), ss 4 (‘gender identity’),

7(m), Dictionary; Discrimination Act 1991 (ACT), ss 2, 7(1)(c),

Dictionary (‘gender identity’).
[162]Equal Opportunity Act

1984 (SA), ss 5(5) (‘chosen gender’),

29(2a).
[163]Equal

Opportunity Act 1984 (WA), ss 4(1) (‘gender reassigned person), 35AA

(‘gender history’), pt

IIAA.
[164]Anti-Discrimination Act 1977 (NSW), s 4(1) (‘recognised transgender

person’), pt 3A (especially s 38A (‘transgender’)). On the

additional provisions, see in particular s

38B(1)(c).
[165]Anti-Discrimination Act 1992 (NT), s 4(1)

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

(‘sexual orientation’, ‘transsexuality’,

‘transsexual’). The Northern Territory law does not define

‘transsexuality’. The Tasmanian definition of

‘transsexuality’ is relatively broad and includes identifying as a

member of the ‘other

sex’.
[166] Note that the Anti-Discrimination Act 1977 (NSW) test is narrower in that it does not

apply to people who assume characteristics of their preferred gender: s 38A.
[167] Anti-Discrimination

Board of New South Wales, The Neglected Communities (2003), p 13. At: http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_mardigrasforum2003 (viewed 25 March 2010).
[168]Equal Opportunity Act 1984 (SA), s

29(2a)(d).
[169]Anti-Discrimination Act 1977 (NSW), s

38B(1)(c).
[170]Equal

Opportunity Act 1984 (WA), s 35AB(3)(a). See s 4(1) definition of

‘gender reassigned person’.
[171]Anti-Discrimination

Act 1977 (NSW), s 4(1) (‘recognised transgender person’); Equal Opportunity Act 1984 (WA), s 4(1) (‘gender reassigned

person’).
[172]Anti-Discrimination Act 1977 (NSW), s 38A; Equal Opportunity Act

1995 (Vic), s 4(1) (‘gender identity’); Anti-Discrimination

Act 1991 (Qld), Dictionary (‘gender identity’); Equal

Opportunity Act 1984 (SA), s 5(5); Discrimination Act 1991 (ACT), s

2, Dictionary (‘gender identity’). Western Australia, the Northern

Territory and Tasmania may cover intersex conditions under their

disability/impairment provisions.
[173] Disability/impairment

discrimination provisions may also be relevant as intersex conditions are seen

as genetic conditions.
[174] See Section 7.2 Current protections from discrimination on the basis of sexual

orientation.
[175] Above.
[176] Above.
[177] {Also} Foundation,

Comment 84. See also A Gender Agenda, Comment 107; The Gender Centre, Comment

48; Freedom! Gender Identity Association, Comment 90; Name withheld, Comment

51.
[178] {Also} Foundation,

Comment 84, p 7.
[179] National

LGBTI Health Alliance, Comment 112, p 8; A Gender Agenda, Comment 107, p

22.
[180] A Gender Agenda,

Comment 107, p 20. See also, National LGBTI Health Alliance, Comment 112; WA

Gender Project, Comment 125; {Also} Foundation, Comment

84.
[181] Romanadvouratrelundar

Starfield, Comment 27.
[182] See, for example, Job Watch, Comment 95a; WayOut, Comment 72; Name withheld,

Comment 70; Name withheld, Comment 69; Name withheld, Comment 58; Name withheld,

Comment 54; Name withheld, Comment 9; Marrickville Legal Centre; Comment 151;

Kingsford Legal Centre, Comment 149 (suggested that legislation should protect

people who do not identify as either gender); Inner City Legal Centre, Comment

142; Women’s Legal Centre (ACT & Region), Comment

106.
[183] See, for example,

Sex and Gender Education Australia and Australian Health and Education Centre,

Comment 73; Name withheld, Comment 70; Name withheld, Comment

58.
[184] See, for example,

Name withheld, Comment 58; WA Gender Project, Comment 125; Women’s Legal

Centre (ACT & Region), Comment

106.
[185] See, for example,

Name withheld, Comment 53; The Gender Centre, Comment 48; Women’s Legal

Centre (ACT & Region), Comment

106.
[186] WA Gender Project,

Comment 125.
[187] See, for

example, Name withheld, Comment 75; Queensland Association of Healthy

Communities, Comment 43; Tasmanian Council for Sexual and Gender Diverse People,

Comment 33; Name withheld, Comment 6 (suggested sex and/or gender

identity/diversity); Fiona David and Peter Bailey, Comment 147; Victorian Child

Safety Commissioner, Comment

138.
[188] See, for example,

Freedom! Gender Identity Association, Comment 90; {Also} Foundation, Comment 84;

A Gender Agenda, Comment 107; broadly supported by participants at the Sydney

and Melbourne roundtables.
[189] See, for example, Sex

and Gender Education Australia and Australian Health and Education Centre,

Comment 73; Still Fierce, Comment

111.
[190] See, for example,

Rachel Wallbank, Comment

122.
[191] See, for example, WA

Gender Project, Comment 125; {Also} Foundation, Comment 84; A Gender Agenda,

Comment 107; Sydney and Melbourne

roundtables.
[192] A Gender

Agenda, Comment 107, p 21. See also National LGBTI Health Alliance, Comment 112,

p 8.
[193] A Gender

Agenda, Comment 107, p

21.
[194] WA Gender Project,

Comment 125A, p 18.
[195] Organisation Intersex International, Comment 82, p 12.
[196] See, for example,

Freedom! Gender Identity Association, Comment 90; Queensland Association for

Healthy Communities, Comment 43; Law Council of Australia, Comment 132; National

LGBTI Health Alliance, Comment 112; A Gender Agenda, Comment 107. See also

Section 7.3 above.
[197]Canadian Human Rights Act 1985 (Canada) as amended by Bill

C-389.
[198]Equality Act

2010 (UK), ss 4, 7, 11 and 12.
[199] New Zealand Government,

‘Crown Law opinion on transgender discrimination’ (Media Release, 2

August 2006). At: www.beehive.govt.nz/release/crown-law-opinion-transgender-discrimination (viewed 25 March 2011).
[200] A Gender Agenda, Comment 107, p

20.
[201] Law Council of

Australia, Comment 132, p

26.
[202] See, for example,

Freedom! Gender Identity Association, Comment 90; Organisation Intersex

International, Comment 82; Name withheld, Comment 75; Sex and Gender Education

Australia and Australian Health and Education Centre, Comment 73; Name withheld,

Comment 70; Name withheld, Comment 69; Name withheld, Comment 68; Name withheld,

Comment 58; Name withheld, Comment 54; Name withheld, Comment 51;

Romanadvouratrelundar Starfield, Comment 27 (‘intergender’ was also

suggested); Name withheld, Comment 22; Name withheld, Comment 9; Gina Wilson,

Comment 8; Name withheld, Comment 7; Name withheld, Comment 2; National LGBTI

Health Alliance, Comment 112; Youth Affairs Council of Victoria, Comment

152.
[203] Sex and Gender

Education Australia and Australian Health and Education Centre, Comment 73,

p 12.
[204] Romanadvouratrelundar Starfield, Comment

27A.
[205] Youth Affairs

Council of Victoria, Comment 152, p

14-15.
[206] AIS Support Group

Australia, Comment 117, p

3.
[207] Above.
[208] Above, p

4.
[209] See, for example, AIS

Support Group Australia, Comment 117; Organisation Intersex International,

Comment 82; Romanadvouratrelundar Starfield, Comment 21; Freedom! Gender

Identity Association, Comment

90.
[210] AIS Support Group

Australia, Comment 117, p 4. See also Freedom! Gender Identity Association,

Comment 90, p 7; Organisation Intersex International, Comment 82, p

12.
[211] Organisation Intersex

International, Comment 82, p

11.