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Sexuality and gender

This type of discrimination occurs where a person is treated unfavourably because of their sexuality or gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because they are bisexual. It would also be discrimination for a relationship-preparation course to exclude same-sex couples because it is assumed that their relationships are not enduring, or to pay male workers more than female workers in the same role.

Legislation:

See also the Workplace Gender Equality Act 2012 (Cth) for more information on gender equality targets for relevant employers [s 4].

Areas of discrimination on basis of sexuality or chosen gender under SA law

Under Part 3 of the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or gender in the following areas:

  • education
  • employment
  • accommodation
  • conferral of qualifications
  • provision of goods and services
  • membership of clubs and associations (other than clubs specifically for particular sexualities or genders).

Exemptions

There are exemptions in the following circumstances:

  • charities for the benefit of people of a particular gender or sexuality
  • special measures intended to achieve equality for persons of a particular gender or sexuality
  • religious bodies in the ordination or appointment of priests, ministers of religion or members of a religious order, or in the training of priests or ministers
  • membership of religious associations
  • employment not connected with an employer's business
  • employment in religious schools - a religious school that wishes to use this exemption must have a policy saying so and must give this to all job applicants and to anyone else who asks for a copy
  • accommodation in one's own household
  • accommodation provided by not for profit organisations for the benefit of persons of a particular gender or sexuality
  • employment: with regard to a particular gender, if discrimination is for the purpose of enforcing standards of appearance and dress reasonably required for employment
  • associations established for persons of a particular gender or sexuality
  • associations where exclusion on the grounds of gender or sexuality is administrated on religious precepts
  • registered objectors under the Assisted Reproductive Treatment Act 1988 (SA) – section 8 of the Act allows a provider of reproductive technologies to register their objection on religious grounds to the provision of assisted reproductive treatment on the basis of sexual orientation, gender identity or marital status; however, it is a condition of registration that they refer the person seeking treatment to another registered provider.

Areas of discrimination on basis of sexual preference and gender identity under Commonwealth law

It is unlawful under the Sex Discrimination Act 1984 (Cth) to discriminate on the basis of sexual orientation [s 5A], gender identity [s 5B] or intersex status [s 5C] in the following areas:

  • access to places and facilities
  • membership of trade unions
  • land, housing and other accommodation
  • provision of goods and services
  • employment
  • education.

Exemptions

There are exemptions in the following circumstances:

  • services directed at members of one sex
  • voluntary bodies
  • charities
  • employment at educational institutions established for religious purposes
  • acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
  • sport (for gender identity and intersex only).

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference and address equal remuneration, under the Fair Work Act 2009 (Cth) [section 351 and Part 2-7]. More information is available in the Employment chapter and in the Fair Work Commission's guide to general protection applications.

Time limit:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth).

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93].

General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394].

Threatened in own home because of sexuality

Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work they made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that they made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.

Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.

Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.


Sexuality and gender  :  Last Revised: Wed Dec 14th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.