On 1 August 2013, amendments to the Sex Discrimination Act 1984 (Cth.) (SD Act) that delivered protection against discrimination on the grounds of sexual orientation, gender identity and intersex status came into force. The amendments serve to modernise the SD Act, delivering protections that better reflect the realities of contemporary society.
Under the amended SD Act, discrimination on the grounds of sexual orientation, gender identity and intersex status is now unlawful, in the same circumstances, such as employment, education or the provision of goods and services, as was unlawful for existing grounds, such as marital status, pregnancy and gender.
The SD Act has been amended to provide protection against discrimination on the ground of a person’s sexual orientation. Sexual orientation is defined as a person’s sexual orientation towards:
• persons of the same sex;
• persons of a different sex; or
• persons of the same sex and persons of a different sex.
Consequential amendments have been made to other acts, with references to sexual preference now replaced with references to sexual orientation.
The amendment to the SD Act also provides protection against discrimination on the ground of a person’s gender identity. Gender identity is defined as:
“the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.” (section 4(1) of the SD Act)
Discrimination on the ground of a person’s intersex status is now also unlawful. Intersex status is defined as the status of having physical, hormonal or genetic features that are:
• neither wholly female nor wholly male;
• a combination of female and male; or
• neither female nor male.
Although intersex people face many of the same challenges as addressed through the protection against discrimination on the ground of gender identity, the inclusion of a separate protection on the ground of intersex status acknowledges that whether a person is intersex is a biological characteristic and not an identity.
Although other jurisdictions in Australia have protection from discrimination on account of gender identity or chosen gender, the approach taken in the SD Act, with a definition of intersex status, based on an acknowledgment of the biological basis of being intersex, is unique among Australian anti-discrimination legislation.
Extension of protections to same-sex de facto couples
Also commencing on 1 August 2013, were amendments to the SD Act that extended protections against discrimination to same-sex de facto couples.
Existing protections, which were based on “marital status”, did not extend to protecting same-sex de facto couples. This led to complaints of injustice, particularly in circumstances when a surviving same-sex partner was denied access to benefits, information or even recognition of their relationship. Through replacing the definition of “marital status” with a much broader “marital or relationship status” definition, protection is now extended to same-sex de facto couples.
Narrowing of the exemption from the SD Act for religious bodies
Also commencing on 1 August 2013, was the narrowed exemption of religious bodies for certain conduct that would otherwise be unlawful under the SD Act. Religious bodies will no longer be exempt from the requirements of the SD Act with respect to the provision, by the religious body, of Commonwealth-funded aged care. Decisions or actions by religious bodies relating to employment and the employment of persons to provide Commonwealth-funded aged care remain exempt from the SD Act.
Action items
With the new protections now in force, it is time to review workplace policies, procedures and training programs to ensure that they are compliant with the updated SD Act.
