Sexuality and your rights
Under the Human Rights Act 2019, every person in Queensland has the same rights and deserves the same level of respect. Section 15 of the Act specifically provides for ‘the right to enjoy other human rights free from discrimination’. This means that laws, policies and programs should not be discriminatory, or enforced in a discriminatory way.
In addition, the Queensland Anti-Discrimination Act 1991 makes it unlawful to discriminate on the basis of sexuality. Sexuality, under the Act, is defined as whether people are heterosexual, homosexual (gay or lesbian), or bisexual.
The Act also makes vilification on the basis of sexuality, and sexual harassment, unlawful in Queensland.
If you are treated less favourably than someone else (in the same or similar circumstances) because of your sexuality, it may be discrimination.
Discrimination can also happen when there is a rule or requirement that disadvantages gay men, lesbians, or bisexual people more than heterosexual people.
Sometimes, discrimination happens because someone makes an assumption about your sexuality that is not correct. For example, someone thinks you are gay and treats you unfavourably because of it, but you are actually straight.
Sexuality discrimination examples
Some examples of discrimination covered by the Act include:
- a specialist refusing medical care to a woman because she is a lesbian;
- a real estate agent choosing not to rent a property to a same-sex couple, even though they are otherwise the strongest applicants;
- a gay man being refused membership of a gym on the basis of his sexuality;
- a workplace where homophobic jokes are constantly made in front of a staff member who identifies as bisexual.
When and where is sexuality discrimination unlawful?
Not all unfair treatment is discrimination under the Act. The Act covers you in areas of public life, including while you are working (including during recruitment processes), at school or college, while obtaining goods and services, when renting or buying property, when obtaining insurance or superannuation, or in dealing with state or local government. The Act does not cover discrimination that happens in private.
Some measures which are aimed at benefiting LGBTIQ people or promoting equal opportunity for members of the LGBTIQ+ community are not discrimination under the Act.
For example, until LGBTIQ+ people are proportionally represented in the oil and gas industry, an LGBTIQ+ careers event for the oil and gas industry may be exempt from discrimination on the basis that it is an event to promote equal opportunities for LGBTIQ+ people.
Similarly, a health service working exclusively with HIV positive clients who identify as LGBTIQ+ may be exempt from discrimination on the basis of being a welfare measure.
Complaints about sexuality discrimination may be lodged with us here at the Commission.
Unlawful sexuality vilification
Vilification is against the law in Queensland.
There are two types of vilification under the Act: unlawful vilification, where you can lodge a complaint with the Commission as type of ‘civil’ action; and serious vilification, which is a crime and therefore a police matter.
If someone publicly incites hatred towards, serious contempt for, or severe ridicule of you personally because you identify as lesbian, bisexual, or gay, it may be unlawful vilification.
Publicly inciting hatred towards, serious contempt for, or severe ridicule of a group of people because they identify as lesbian, bisexual, or gay, may also be unlawful vilification. For example, inciting hatred towards all gay women.
Unlawful vilification has four elements, and a sexuality vilification complaint must have all of them.
- It happened in public. A public act means:
- any form of communication to the public, such as speaking, displaying notices, broadcasting, posting on the internet and social media; and
- any conduct that the public can observe, including actions, gestures, wearing or displaying of clothing, signs, flags, emblems or insignia.
- It is capable of inciting. Incite means:
- to urge on, stimulate or prompt to action.
- It is not necessary that any particular person was incited.
- It is capable of inciting hatred towards, serious contempt for, or severe ridicule of a person or group of persons.
- Hatred means to detest or intensely dislike someone.
- Contempt is the attitude that someone is worthless or inferior.
- Ridicule is making fun of or laughing at someone.
- Serious means important, and severe means harsh or extreme.
- Sexuality is a substantial reason for the incitement.
Complaints about vilification may be lodged with us here at the Commission.
Unlawful sexuality vilification examples
Some examples of unlawful vilification covered by the Act include:
- a radio host using highly offensive homophobic language, laughing at and belittling gay and bisexual men on the air;
- posters that say that lesbian mothers are damaging their children because they are exposed to their mothers' sexuality;
- adverse comments inciting hatred towards all gay men written on a gay man's publicly accessible social media page for his business.
When is vilification unlawful?
If someone has a complaint made against them for vilification, there are some defences under the Act that they may call upon. In order to argue their actions are not vilification, they have to show their conduct was:
- done reasonably and in good faith for academic, scientific, artistic, research or religious discussion, or other purposes in the public interest; or
- a fair report of a public act.
Serious sexuality vilification
Serious vilification is a criminal offence under the Anti-Discrimination Act 1991. It is vilification which includes a threat of physical harm to a person or their property.
Serious vilification occurs where there is:
- a public act;
- knowingly or recklessly;
- hatred towards, serious contempt for, or severe ridicule of;
- a person or group of persons;
- on the ground of the sexuality of the person or group;
- in a way that includes:
- threat of physical harm to property or person; OR
- inciting others to threaten physical harm to property or person.
Serious vilification is dealt with by the police.
Serious sexuality vilification example
A sign that has been posted in a public park stating: Poofters lingering in this park will be bashed. Keep out!
When is serious vilification unlawful?
The defences available to unlawful vilification do not apply to the criminal offence of serious vilification.
If you experience unwelcome conduct of a sexual nature, it may be sexual harassment. Sexual harassment includes:
- unwelcome touching, kissing, staring or leering, unnecessary familiarity such as deliberately brushing up against you;
- suggestive comments or jokes about you;
- sexually explicit pictures or posters;
- unwanted invitations to go out on dates, or requests for sex;
- insults, taunts or intrusive questions about your private life or body;
- sexually explicit emails, text messages and social media posts; and
- any other unwelcome conduct of a sexual nature in relation to you.
Sexual harassment is conduct of the kind described above, that is done with the intention of offending, humiliating or intimidating you, or where a reasonable person would have anticipated the possibility that you would be offended, humiliated or intimidated by those actions.
It has nothing to do with mutual attraction or friendship between people and happens regardless of the sex of the individuals or the sexuality of those involved.
Sexual harassment does not have to be deliberate or repeated to be unlawful.
Some sexual harassment, such as sexual assault, indecent exposure and stalking is also a criminal offence.
Sexual harassment can happen anywhere: while at work, in a shop or restaurant, at school or college, when looking for accommodation, or when dealing with tradespeople, businesses, or state or local government officials.
Sometimes ill treatment of you may be both discrimination and sexual harassment. For example, an offensive joke is made in the workplace about a lesbian woman relating to her sexual history with her partner could be sexual harassment under the Act.
Sexual harassment complaints can be lodged with us here at the Commission.
- Find out more about sexual harassment
- Contact our enquiry line
- Find out more about our complaints process
Unlawful requests for information
Under the Act, it is against the law to ask a person to supply information, either in person or in writing, on which discrimination might be based.
For example, a potential employer asking you during a job interview about your relationship with your same-sex partner could be unlawful under the Act.