Australia: Sexual orientation, gender identity and intersex status now protected under federal anti - discrimination legislation

The Federal Government has amended the Sex Discrimination Act 1984 (Cth) ("SDA") to introduce sexual orientation, gender identity and intersex status as attributes protected from discrimination, and to bring same-sex de facto couples within the protection of the existing "marital status" attribute.

Importantly, the changes also limit an exemption currently available to religious organisations, with the effect that Commonwealth-funded aged care service providers, although exempt from unlawful sex discrimination when choosing who to employ, will no longer be exempt when providing aged care services.

Background to the changes

The changes to the SDA to expand the protected attributes were part of a set of proposals put forward by the Federal Government earlier this year to consolidate and harmonise Australia's five separate pieces of anti-discrimination legislation (at the Federal level).

Those proposals, amongst other things, also included clarification of the type of conduct that constituted harassment (by inserting a definition of "unfavourable treatment"), a reversal of the onus of proof so that the decision-maker (usually an employer) would bear the burden of proving that there had been no unlawful discrimination once the complainant (usually an employee) had established a "prima facie" case of discrimination, and the introduction of a new exemption for "justifiable conduct".

The proposals, however, proved controversial and the Federal Government withdrew them and sent them back to the Attorney-General's Department for reconsideration.

On the basis that they were considered to be far less controversial, the Federal Government re-introduced into Parliament some parts of those withdrawn proposals, being the changes to the SDA described in this article.

SDA to protect additional attributes

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 ("Amending Act"), amongst other things,introduces the following new protected attributes:

  • sexual orientation – this is defined to mean a person's sexual orientation towards persons of the same sex, persons of a different sex, or both persons of the same sex and persons of a different sex. To ensure consistent language, consequential changes to other Federal legislation are also made, including to the Fair Work Act 2009 (Cth), to replace the term "sexual preference" with "sexual orientation", which is considered a broader and more inclusive term;
  • gender identity – the introduction of this attribute is aimed at providing protection from discrimination for gender diverse people, which encompasses the way a person expresses or presents their gender, and recognises that a person may not identify as either male or female;
  • intersex status – this attribute has been introduced to recognise that whether a person is intersex is a biological characteristic and not a gender identity, and that sex is not a binary concept (so that all persons are not either male or female); and
  • marital or relationship status – this attribute has replaced the existing protected attribute of "marital status" to provide protection from discrimination for same sex de facto couples, who do not fall within the definition of "marital status".

Each of these attributes will be protected from discrimination in the same public areas of life as for other attributes already protected under the SDA, including employment, and the provision of education, goods, services, facilities and accommodation.

Commonwealth funded aged-care providers

The Amending Act has also removed the ability of religious organisations providing aged-care services to rely on an exemption within the unlawful discrimination provisions of the SDA.

This change was driven by feedback the Federal Government received of the discrimination faced by older same-sex couples in accessing aged care services run by religious organisations, particularly when seeking to be recognised as a couple.

The effect of this change is that Commonwealth-funded aged care service providers cannot, in providing their services, discriminate on the basis of an attribute protected by the SDA.

However, Commonwealth-funded aged care service providers can still discriminate on the basis of sex when making employment-related decisions, such as who to employ, in order to conform to the doctrines or tenets of a religion, or which are necessary to avoid upsetting the religious sensitivities of adherents of that religion.

What do these changes mean for employers?

Employers should make sure they and their key decision makers are fully aware of, and understand, the changes to the SDA.

Employers should also review any policies or practices which may unintentionally discriminate against people with the new protected attributes, and to make any necessary changes to those policies or practices.

Any religious based aged-care service providers that receive Commonwealth funding will need to carefully reconsider any potentially discriminatory conduct or practices they engage in when providing their services, and to take preventative steps in order to reduce the legal risk of any unlawful discrimination claim being brought.

Although the Amending Act has passed through both houses of Federal Parliament, and received Royal Assent, its amendments will at the latest commence at the end of December 2013, unless an earlier commencement date is fixed by proclamation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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