Gender identity

From 29 April 2024 there will be a new attribute of ‘sex characteristics’ protected from discrimination and vilification, and the attribute of ‘gender identity’ will have a new broader definition. These protections apply to conduct that happens from 29 April 2024.

The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person because of their gender identity.

What is gender identity discrimination?

Under the Act, gender identity means a person’s internal and individual experience of gender, whether or not it corresponds with the sex they were assigned at birth. It includes a person’s:

personal sense of their body; and
if freely chosen, modifications of their bodily appearance or functions by medical, surgical or other means; and
other expressions of their gender, including name, dress, speech and behaviour.

Discrimination can be direct or indirect. Direct discrimination is treating a person less favourably because of their gender identity than someone in similar circumstances.

For example, a trans woman loses her job after coming out as trans at work.

Indirect discrimination may be less obvious. Sometimes a rule or policy seems to treat everyone the same, but in fact, some people end up being treated less favourably because of their attribute.

For example, a workplace which doesn’t allow any changes to an employee’s personnel records may require a transgender person to continually disclose information about their gender identity, in order to explain discrepancies.

It is also unlawful to discriminate against a person because of their association with or relation to a person identified on the basis of their gender identity - such as a friend, family member or co-worker.

For example, a non-binary person and their friend are told to leave a shop because they are ‘putting other customers off’.

Discrimination based on gender identity can include verbal insults, threats, intimidation and violence.

It doesn’t matter if the person doesn’t mean to discriminate, or whether they think they are being discriminatory or not. It also doesn’t matter if their beliefs or assumptions about the person or people they are discriminating against are correct or not. Under the Act, someone’s motive for discriminating is irrelevant.

If you have experienced any of these types of discrimination, you may be able to lodge a complaint with the Commission.

Gender identity vilification

Gender identity vilification happens when someone incites hatred towards, serious contempt for, or severe ridicule of a person or group because of their gender identity.

Serious vilification is when this includes a threat of physical harm to the person or their property, or incites others to threaten physical harm to the person or their property. Serious vilification is a criminal offence.

Find out more about vilification

Read cases studies involving vilification

When and where is gender identity discrimination unlawful?

Gender identity discrimination is unlawful in all aspects of work, including recruitment, terms and conditions on which a job is offered, employment benefits, training, transfers, promotion and dismissal.

It is also unlawful when a person is:

a customer in a shop or restaurant,
a student at school or university (if it is by the educator),
looking for accommodation,
applying for credit, insurance or a loan, or
when dealing with tradespeople, businesses or State or local government.

Examples of gender identity discrimination

A transmasculine high school student who was affirming his gender while attending school changed his name with his parents' assistance and support. There were meetings with school staff, but one teacher insisted on calling the student by his former name and humiliating him in front of the class.
A trans woman was told by a publican not to use the female toilet.
A gender non-conforming teenager who wore earrings and clear nail polish to school was told that he had to stop wearing them in accordance with school rules. Girls were permitted to wear earrings and clear nail polish according to the rules.
A GP’s office only has male and female options on a medical intake form, providing no option for a non-binary patient to state their gender. During the appointment, the doctor kept referring the patient as a ‘female’ and using the wrong pronouns, even after being corrected.
A person came out at work to their colleagues as being gender fluid. Their colleagues started making offensive comments about them behind their back after they started wearing more androgynous clothing to express their gender. Their supervisor did not address the bullying and instead told them that maybe they should ‘dress more masculine’ to prevent the behaviour from continuing.

When and where is different treatment okay?

Not all treatment that might seem unfair is against the law. The Act lists some exemptions allow conduct that would otherwise be discriminatory. Whether or not an exemption applies will depend on individual circumstances.

The following exemptions are relevant to gender identity.

Competitive sport

Participation in a competitive sporting activity may be restricted on the basis of gender identity if the restriction is reasonable considering the strength, stamina or physique requirements of the activity.

Work in a person's own home

It is lawful for a person to discriminate on the basis of gender identity, when employing someone to perform domestic services or to look after their children in the person’s home.