Sex Discrimination Act Amendments

Sex Discrimination Act Amendments

26 August 2013

New protections against discrimination based on sexual orientation, gender identity and intersex status came into effect from 1 August 2013. 

It is now unlawful under the Sex Discrimination Act 1984 (Cth) (SDA) to discriminate against a person on the grounds of their: 

  • Sexual orientation
  • Gender identity 
  • Intersex status 

Same-sex de facto couples are now also protected from discrimination under the new definition of ‘marital or relationship status’ (previously, this only referred to ‘marital status’). 

What do the changes cover? 

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 defines sexual orientation as a person’s sexual orientation towards persons of the same sex, persons of a different sex, or both. Terminology like “homosexual”, “straight”, “lesbian”, etc. are not used to avoid offense or inaccuracy, but the intention is to cover those orientations. 

Gender identity refers to the identity, appearance, mannerisms or other gender-related characteristics of a person. This includes how a person expresses or presents their gender and recognises a person may have an identity other than male or female. Whether a person has undergone medical intervention or not is irrelevant. 

Intersex status refers to the status of having physical, hormonal or genetic features that are neither wholly female nor male, a combination of female or male, or neither female or male. Intersex is about biological variations, not gender identity. 

When does the Sexual Discrimination Act (SDA) apply? 

Discrimination may be unlawful when it occurs in protected areas of public life, including: 

  • Employment 
  • Education 
  • Provision of goods, services and facilities 
  • Providing of land, housing or accommodation 
  • Membership and activities of licensed clubs 
  • The administration of Commonwealth laws and programs

The SDA includes provisions that in certain circumstances the discrimination may not be unlawful including for certain accommodation providers, charities, religious bodies and sports. 

Understanding the Changes 

Some examples of direct and indirect discrimination are outlined below: 

Direct - Discrimination may occur on the basis of sexual orientation if an employer refuses a promotion to an employee after he discloses he is bisexual. 

Indirect - An employer’s benefits policy which provides spousal benefits to an employee’s husband or wife, such as discounted travel or gym membership, may indirectly discriminate against a lesbian employee who has a same-sex partner 

Direct - Discrimination could occur if a shop-assistant refused to serve a person who identifies and presents as a woman but has a deep masculine sounding voice because she felt uncomfortable about that person’s gender identity. 

Indirect - It may be indirect discrimination if an organisation’s human resources policies do not permit changes to an employee’s records. Such a policy may require a transgender woman to continually disclose information about her gender identity in order to explain discrepancies in personal details. 

Find out more

The Australian Human Rights Commission (AHRC) is now able to accept, investigate and resolve complaints alleging discrimination on the basis of sexual orientation, gender identity and intersex status alongside existing grounds of race, disability, age and sex. 

Discrimination complaints on the new grounds, which also extend coverage to same-sex couples, must have occurred on or after 1 August 2013. 

It is important that employers are aware of the changes to the Sexual Discrimination Act. 

The above information is a guide only; for specific advice on the rights and obligations under these new amendments you are encouraged to contact the AHRC Complaint Information Service on 1300 656 419, visit the website or speak with your legal advisor. 

Source: Human Capital On-line article by Cameron Edmond | 01 Aug 2013; Australian Human Rights Commission – Sexual Orientation, Gender Identity and Intersex Status Information Sheet 

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