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.