Introduction to discrimination and human rights law
A student who identifies as trans or gender diverse enjoys the same legal rights and protections as any other student. Anti-discrimination protections for students apply under the Queensland Anti-Discrimination Act 1991 and the federal Sex Discrimination Act 1984.
Under the Queensland Human Rights Act 2019, students in state schools have the right to access primary and secondary education appropriate to their needs, and can expect equality before the law. Children also have the right to have their best interests protected.
The Human Rights Act recognises that children are entitled to special protections under the law because of their vulnerability. This means that the best interest of the child should be taken into account in all actions that affect a child. A child’s ‘best interests’ will depend on the circumstances and is different for each individual. Consideration of best interests should take into account the child’s views and recognize their autonomy to make decisions for themself when they are mature enough to do so.
In the context of education, this means that children in Queensland have a human right to an education that enables them to develop to their full potential, caters for their individual circumstances, and allows them to express their individual identity.
The Human Rights Act also requires that children are protected against discrimination.
Unlawful discrimination under the Anti-Discrimination Act can be either:
- Direct discrimination: less favourable treatment because of an attribute (such as gender identity, age, or sex).
For example: A school refused to accept an enrolment application from a student because of their gender identity;
- Indirect discrimination: imposing an unreasonable requirement that a person cannot comply with because of their attribute (such as gender identity, age, or sex).
For example: A school requires all students to wear a school uniform based on their gender assigned at birth.
The Queensland Human Rights Commission (QHRC) helps resolve discrimination complaints under the Anti-Discrimination 1991 and human rights complaints against public entities (including state schools but not private schools) under the Human Rights Act 2019.
The federal Sex Discrimination Act 1984 provides protection from discrimination for people who identify as trans and gender diverse, and the Australian Human Rights Commission (AHRC) resolves complaints made under this Act.