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Sexuality and chosen gender

This type of discrimination occurs where a person is treated unfavourably because the person is homosexual, heterosexual, bisexual or of a chosen gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because he or she is bisexual. It would also be discrimination for a relationship-preparation course to exclude homosexual couples because it is assumed that their relationships are not enduring.

Chosen gender refers to a person’s adopting the characteristics of the sex opposite to their biological sex (sometimes called transgender) and also includes people who have an intersex condition and decide to live as a member of one or the other sex. It is discrimination to treat these people unfavourably because of the gender that they have adopted as their own. It is also discrimination for an employer to require them to dress as a member of the sex with which they do not identify.

Legislation:

Areas of discrimination on basis of sexuality or chosen gender under SA law

Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or chosen gender in the following areas:

  • education
  • employment
  • accommodation
  • conferral of qualifications
  • provision of goods and services
  • membership of clubs and associations (other than clubs specifically for homosexuals or bisexual people or people of a chosen gender)

Exemptions

  • charities for the benefit of people of a chosen gender or with a particular sexuality
  • special measures intended to achieve equality for persons of a chosen gender or with a particular sexuality
  • religious bodies in the ordination or appointment of priests, ministers of religion or members of a religious order, or in the training of priests or ministers
  • membership of religious associations
  • employment not connected with an employer's business
  • employment in religious schools - a religious school that wishes to use this exemption must have a policy saying so and must give this to all job applicants and to anyone else who asks for a copy
  • accommodation in one's own household
  • accommodation provided by not for profit organisations for the benefit of persons of a chosen gender or with a particular sexuality
  • employment: with regard to chosen gender, if discrimination is for the purpose of enforcing standards of appearance and dress reasonably required for employment
  • associations established for persons of a chosen gender or with a particular sexuality
  • associations where exclusion on the grounds of chosen gender or sexuality is administrated on religious precepts
  • registered objectors under the Assisted Reproductive Treatment Act 1988 (SA) – section 8 of the Act allows a provider of reproductive technologies to register their objection on religious grounds to the provision of assisted reproductive treatment on the basis of sexual orientation, gender identity or marital status; however, it is a condition of registration that they refer the person seeking treatment to another registered provider.

Areas of discrimination on basis of sexual preference under Commonwealth law

Australian Human Rights Commission

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 introduced changes to the Sex Discrimination Act 1984 (Cth) to enable the Australian Human Rights Commission to investigate and resolve complaints of discrimination, harassment and bullying based on a person’s gender identity and intersex status, relating to conduct that occurred after 1 August 2013. (The Commission can also receive complaints on this basis for conduct that occurred prior to 1 August 2013, however can only take the matters to the Conciliation stage and write a report to the Attorney-General).

There is a temporary exemption under these provisions (until 31 July 2014) for conduct that would otherwise be discrimination on the grounds of sexual orientation, gender identity or intersex status if the conduct is in direct compliance with a Commonwealth, State or Territory law prescribed by regulations.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference, under the Fair Work Act 2009 (Cth) s 351 [see the Employment chapter for information about this general protection under that Act]. See also the Fair Work Commission's guide to general protection applications.

Time limit:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Threatened in own home because of sexuality

Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work he made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that he made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.

Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.

Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.


Sexuality and chosen gender  :  Last Revised: Wed Nov 8th 2017
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.