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.