Amendment to the Sex Discrimination Act

Introduction to Changes

A recent amendment to the Sex Discrimination Act 1984 (SDA) has introduced both new terminology and a corresponding broadening of categories of discrimination that are unlawful.

The changes took effect on 1 August 2013. The amendments make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status.

Same-sex couples are also now protected from discrimination under a new definition entitled 'marital or relationship status'.

The introduction of these new protections will particularly apply to lesbian, gay, bisexual, transsexuals, gender diverse and intersex people. However, these descriptors are no longer specified, but are rather incorporated into the new categories.

It is important to note that there are some exemptions to the new laws.

Complaints jurisdiction

People covered by these new categories will now be able to make complaints to the Australian Human Rights Commission, if they believe they have been discriminated against.

New definitions

Sexual orientation means a person's sexual orientation towards:

• persons of the same sex; or
• persons of a different sex; or
• persons of the same sex and persons of a different sex.

There is an acknowledgement of the sensitivity surrounding the use of the existing terminology to label sexual orientation, accordingly, the new definitions are more broadly inclusive and neutral in their phrasing.

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 SDA does not use gender identity labels, such as transgender and gender diverse. Instead, it uses more broad categories that cover these identities. Accordingly, the SDA now offers protection to not only those that identify as men or women, but also to those that identify as neither male nor female.

Intersex status means the status of having physical, hormonal or genetic features that are:

• neither wholly female nor wholly male;                                                                                               
• a combination of female and male;                                                                                               
• neither female nor male.

Being intersex is about biological variations, not about a person's gender identity. Intersex people typically also have a gender identity and sexual orientation protections.

The change from the definition of marital status to 'marital and relationship status' now includes de facto same sex couples.

Exemptions are made for religious organisations for conduct connected with the provision of Commonwealth-funded aged care services. Exemptions also apply for specified accommodation providers, charities, religious bodies (except for intersex status in religious education institutions), voluntary bodies, sport (except sexual orientation) and certain acts done under statutory authority. Also exempt is anything done in direct compliance with:

• The Marriage Act 1961(Cth)                                                                                                                  
• State or territory laws;                                                                                                                           
• requests made for information and record keeping in relation to sex and/or gender that do not allow for identification as being neither male nor female.

What is the relevance for employers?

Discrimination on the above grounds is now made unlawful through the SDA and compliments all the existing categories of discrimination.

These new categories operate across both direct and indirect discrimination. It is direct discrimination to treat a person less favourably on the grounds of their sexual orientation or gender identity or intersex status. It is indirect discrimination to impose, or propose to impose, a requirement, condition or practice that has, or is likely to disadvantage people with a particular sexual orientation, gender identity or intersex status, and which is not reasonable in the circumstances.

We note that your existing policies, processes, discrimination training and possibly even contracts may have discrimination components to them that are now divergent from the new terminology and categories of coverage in the SDA. Accordingly, we recommend that you have these reviewed to ensure they reflect the new amendments to the SDA.

If you would like more information, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.