The introduction of new grounds of discrimination protection in the Sex Discrimination Act 1984 (Cth) (Act) means that it is now unlawful to discriminate against people on the basis of sexual orientation, gender identity, intersex status and marital or relationship status in circumstances which include employment, education and the provision of goods and services.
LGBTI1 people can now make a complaint to the Australian Human Rights Commission (AHRC) if they are subject to discrimination based on these new grounds.
What are the amendments?
Despite gender identity and sexual orientation already being protected attributes under State discrimination legislation in a number of States, federal law only prohibited discrimination against persons on the grounds of sex, marital status and pregnancy.
The introduction of three new grounds of discrimination - sexual orientation, gender identity and intersex status - broadens the protections against discrimination and ensures consistency between State and federal law, where applicable. The expansion of the existing ground of 'marital status' to 'marital or relationship status' now extends the protections to same-sex de facto couples.
The principal amendments to the Act, which came into effect on 1 August 2013, include the following:
- enabling voluntary bodies, competitive sporting bodies and religious organisations to be exempt from discriminating against people based on the new grounds in particular circumstances (although the exemption for religious schools, for example, in the employment of staff, will not be extended to cover 'intersex status');
- ensuring that religious organisations which provide Commonwealth funded aged care services are unable to refuse entry to, and therefore discriminate against, LGBTI people (although religious organisations are still exempt from discrimination when it comes to employing people to provide aged care); and
- providing that it is not unlawful to request information or keep records in a way that does not provide for a person to be identified as being neither male or female, that is, there does not need to be an alternative to 'male' or 'female' when collecting data or making records.
The Act also clarifies that the amendments do not affect the current Government's policy regarding same-sex marriage. The AHRC has lauded the amendments as being "a step closer to full equality."2
Ground-breaking development for 'gender non-specific persons'
In a case consistent with providing equality and promoting cultural change in Australia, a team of our lawyers recently achieved a historical court ruling for androgynous transgender persons when they won a case for pro bono client Norrie, who identifies as neither male or female.3
In 2010, when requesting to be registered as 'gender non-specific', Norrie was told the Births, Deaths and Marriages Registration Act 1995 (NSW) did not allow for anything other than 'male' or 'female' to be recorded . On appeal, this decision was upheld by both the Administrative Disputes Tribunal (ADT) and the ADT Appeal Panel, even though the ADT acknowledged that its decision may have been out of step with current social, medical and scientific views.
Our pro bono team took Norrie's case to the NSW Court of Appeal , where the earlier decisions were reversed and it was acknowledged that the ADT Appeal Panel erred in constructing the word 'sex' as meaning only male or female, recognising that gender is not a binary state, but a continuum with some members of the community fitting more easily between the male/female state. The landmark ruling marks the law taking one step closer towards properly recognising the existence of people who are intersex.
What do the amendments mean for employers?
The most relevant amendment for the majority of employers is the introduction of new grounds of discrimination.
Broadly, it is unlawful for employers to discriminate against a person on one of the grounds under the Act in terms of offering employment, determining the terms and conditions of employment, providing access to opportunities for training, transfer or promotion, and termination.
Employers need to ensure that their workplace policies and procedures specify that unlawful discrimination includes direct and indirect discrimination on the basis of sexual orientation, gender identity, intersex status and marital or relationship status. The Act includes definitions of these new grounds in the event of any confusion as to their meaning.
Employers should incorporate information about the new grounds, and any other changes to the Act relevant to their business, into training material where appropriate, and also consider communicating the changes to employees at meetings or by email as soon as practicable to ensure that they are aware of the changes.
Employers should also ensure that employees in managerial roles are up-to-date with the changes as a matter of priority and are aware of their obligations under the Act generally. The AHRC can investigate and conciliate complaints relating to discrimination on the basis of the new grounds, which means that managers need to be mindful of this risk when making decisions or responding to internal grievances which affect LGBTI people.
By prohibiting discrimination on the grounds of sexual orientation, gender identity, intersex status and marital or relationship status, the amendments to the Act provide clarity and consistency in the coverage of these grounds and bridge any relevant gaps between State and Federal discrimination legislation.
In order to reduce the risk of a complaint to the AHRC, employers should ensure their workplace policies and procedures appropriately reflect the new amendments to the Act, and any workplace training for employees and managerial staff make reference to these important changes.
1Lesbian, gay, bisexual, transgender and
2AHRC Media Release, 26 June 2013.
3Norrie v NSW Registrar of Births Deaths and Marriages  NSWCA 145.
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