12 September 2013
IR Alert – New Protections within the Sex Discrimination Act 1984 (Cth) (SDA)
From 1 August 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) inserted new protections within the Sex Discrimination Act 1984 (Cth) (SDA).
These protections will now make it unlawful, under federal law, to discriminate (both directly and indirectly) against a person on the following grounds:
Sexual orientation;gender identity; and intersex status.
Furthermore, same-sex couples will also be protected from discrimination (both directly and indirectly) under the new definition of ‘marital or relationship status’ (amended from ‘marital status’). These new protections will particularly apply to lesbian, gay, bisexual, trans, gender diverse and intersex people.
Sexual orientation means a person’s sexual orientation towards:
a) persons of the same sex or
b) persons of a different sex or
c) persons of the same sex and persons of a different sex.
According to the Australian Human Rights Commission, some terms used to describe a person’s sexual orientation “include gay, lesbian, homosexual, bisexual, straight and heterosexual. Whilst the new definition does not use these labels, as these may be offensive or inaccurate, it is intended to cover these orientations.”
Gender identity means the gender-related identity, appearance or 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.
The Australian Human Rights Commission details some terms that are used to describe a person’s gender identity, including “trans, transgender and gender diverse. Whilst the new definition does not use these labels, as these may be offensive or inaccurate, it is intended to cover these orientations.”
Moreover, the SDA provides protection from discrimination for people who identify as men, women and neither male nor female. It does not matter what sex the person was assigned at birth, or whether the person has undergone any medical intervention.
Intersex status, according to the Australian Human Rights Commission, ‘means the status of having physical, hormonal or genetic features that are:
a) neither wholly female nor wholly male or
b) a combination of female and male or
c) 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. Intersex people typically also have a gender identity and sexual orientation.
Sexual harassment protections
Protections for sexual harassment will continue with one change. The sexual harassment provisions will now include that a person’s ‘sexual orientation, gender identity, intersex status, martial or relationship status’ are now part of the circumstances that can be taken into account when considering whether or not a reasonable person ‘would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’.
What does this mean for employers?
Discrimination on the new grounds is unlawful in the same circumstances as for other grounds already covered by the SDA (including sex, pregnancy, potential pregnancy, breastfeeding and family responsibilities). It should be noted that these new changes do not affect the existing grounds and they will continue to operate unchanged.
Members should become familiar with the changes to the SDA and review their policies, processes and training to ensure compliance with the changes to the legislation.
Members can access a more detailed update to the changes within the SDA via the Australian Human Rights Commission website.
CCIQ members only Employer Assistance Line is available to answer your employment questions. If you are a member and have any questions please contact Chamber of Commerce & Industry Queensland’s Employer Assistance Line (EAL) on 1300 731 988. Local phone call costs apply.
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