Gender Identity Discrimination

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The Discrimination Act 1991 makes it unlawful to treat you unfavourably because of your gender identity.

The Discrimination Act 1991 defines ‘gender identity’ in a particular way, which refers to: ‘the identification, on a genuine basis

  • by a person of one biological sex as a member of the other sex; or
  • by a person of indeterminate biological sex as a person of a particular sex’

This identification may be by assuming characteristics of that sex (including style of dressing or other characteristics), or by living, or seeking to live as a member of that sex. The definition applies to intersex people who identify as a particular sex, as well as trans people. It does not require that a person has undertaken any medically assisted transition.

What does discrimination mean?

Under ACT law, discrimination means treating someone unfavourably because of a personal characteristic that is protected in the Discrimination Act. ‘Gender identity’ is one of the personal characteristics protected in the Act. It is against the law to discriminate against a person because of their ‘gender identity’ in many areas of public life, including:

  • Recruitment and employment (including ACT public and private sector, paid and unpaid work);
  • Access to premises (including public buildings, parks, buses, taxis and aircraft); • Accommodation (including public housing, and private, business or residential rental); • Education;
  • Provision of goods, services or facilities; Requests for information (when the information about a person will be used to disadvantage that person); or
  • Unlawful advertising (advertising an intention to discriminate).

For example ‘gender identity’ discrimination may involve not interviewing someone for a job, forcing a person who identifies as a woman to use male designated toilets, refusing a person service in a restaurant because of the way they look, or imposing special conditions that do not apply to others.

  • Example: April, a transgender woman, was shopping for clothes in a boutique. She was told by the shop assistant that she was not allowed to use the change rooms to try on the clothes because it was a “women’s only space” and that she would just have to buy them without checking that they fit. She was also told the shop would be unlikely to accept a return in the event that the clothes didn’t fit as “they would be used”.

When is discrimination allowed?

It is not unlawful to take special measures to help groups or individuals who are disadvantaged or have been unfairly treated and need support to fully enjoy their human rights. For example, some disadvantaged groups suffer from greater social and economic disadvantage than other groups in society and may therefore require special assistance to enjoy their rights to the same level that other Australians enjoy those rights. A service created to provide free legal advice only to trans and intersex people would be an example of a special measure which is not unlawful discrimination. The law also contains specific exceptions making it lawful to discriminate in some circumstances. Examples where discrimination on the grounds of gender identity is not unlawful in the ACT include:

  • Carrying out an act that is necessary to comply with a Territory law or court order;
  • The availability of membership or the services of a voluntary association; or
  • Appointing members of religious orders, such as priests or ministers.

There is also an exception for discrimination on the grounds of sex in competitive sporting activity where the strength, stamina or physique of competitors is relevant.

What is vilification?

It is also against the law to vilify a person or group of people on the grounds of ‘gender identity’. Vilification means to publicly incite hatred towards a person or group of people which is likely to offend, insult, humiliate or intimidate that person or group of people.Some examples might include:

  • Distributing pamphlets to the public ridiculing a person’s ‘gender identity’;
  • Wearing clothing with messages that denigrates a person’s ‘gender identity’; or
  • Insulting or inciting hatred against people because of their ‘gender identity’ by a speech at a public rally.
  • Vilification only extends to acts done ‘in public’ and does not include acts ‘done reasonably in good faith’.

Example: Dylan is a student at a Canberra high school who was born with ambiguous sexual characteristics, but identifies as male. Students in Dylan’s class have been teasing and bullying him about his intersex status, and have written obscene comments about him on social networking sites and in the school toilets. Although Dylan reported this abuse to his teachers the school has failed to act to stop this conduct or to remove the graffiti. The school has not provided any information or education to students or staff to help them to better understand intersex and gender diverse people. Victimisation It is unlawful to victimise a person for making or supporting a discrimination complaint, or for reasonably asserting their rights under the Discrimination Act. Victimisation means subjecting a person to any detriment, and could include a wide range of behaviour such as verbal harassment, loss of job opportunities or refusal of service.