From 1 August 2013 amendments to federal discrimination laws on the basis of sexual orientation, gender identity and intersex status were made.
What has changed?
From August 2013 it became unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law. Same-sex couples are now also protected from discrimination under the definition of ‘marital or relationship status’.
Most states and territories have some form of protection against discrimination on the basis of sexual orientation and gender identity; however, the Sexual Discrimination Amendment Act 2013 (SDA Act) introduces more inclusive definitions and addresses gaps such as a lack of coverage for acts or practices of the federal government. It also includes the new ground of intersex status.
These new protections will particularly apply to lesbian, gay, bisexual, trans, gender diverse and intersex people. People will be able to make complaints to the Australian Human Rights Commission if they believe they have been discriminated against on the basis of these new grounds.
What is discrimination on the basis of sexual orientation, gender identity and intersex status?
Sexual orientation means a person’s sexual orientation towards:
- persons of the same sex or
- persons of a different sex or
- persons of the same sex and persons of a different sex.
Common terms used to describe a person’s sexual orientation include gay, lesbian, homosexual, bisexual, straight, heterosexual; though the new definition does not use labels, as these may be considered offensive or inaccurate.
Gender identity means the gender-related identity, appearance, mannerisms or other gender-related characteristics of a person. This includes the way people express or present their gender and recognises that a person’s gender identity may be an identity other than male or female. Terms used to describe a person’s gender identity include trans, transgender and gender diverse. Again, the SDA Act does not use these labels; however it is intended to cover these identities and more.
Intersex status means the status of having physical, hormonal or genetic features that are:
- neither wholly female nor wholly male or
- a combination of female and male or
- neither female nor male.
Being intersex is about biological variations, not about a person’s gender identity. An intersex person may have the biological attributes of both sexes, or lack some of the biological attributes considered necessary to be defined as one or other sex.
The amendments also extend the definition of marital status to ‘marital or relationship status’ which includes de facto same-sex couples.
Discrimination on the new grounds is unlawful in the same circumstances as for other grounds already covered by the SDA Act (including sex, pregnancy, potential pregnancy, breastfeeding and family responsibilities). The new changes do not affect the existing grounds and they will continue to operate unchanged. People can continue to make complaints alleging sex discrimination.
Are there exemptions to unlawful discrimination?
Yes. The SDA Act includes provisions that provide that in certain circumstances the discrimination will not be unlawful. Some of the existing provisions in the SDA Act will now also apply to the new grounds as well as introducing new exemptions specifically for sexual orientation, gender identity and intersex status. These include for conduct in compliance with the Marriage Act 1961 (Cth); for conduct in compliance with prescribed Commonwealth, State or Territory laws; and for requests for information and record keeping in relation to sex and/or gender.
The SDA Act also qualifies the exemptions for religious organisations to the effect that it does not apply to conduct connected with the provision of Commonwealth-funded aged care services.
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