Sex characteristics

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.

From 29 April 2024, the Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person because of their sex characteristics.

What is discrimination on the basis of sex characteristics?

Everyone has sex characteristics. Sex characteristics are biological and refer to a person’s physical features related to their sex.

Some people have innate variations of sex characteristics and their bodies don’t conform with medical and social norms for female or male bodies. This is called being intersex. Most people who experience discrimination on the basis of their sex characteristics are intersex.

Innate variations of sex characteristics are natural differences that occur in about 1.7% of the human population – however, many people are unaware of or misinformed about intersex people, and this leads to stigma and discrimination against intersex people.

Discrimination on the grounds of sex characteristics can be direct or indirect. Direct discrimination is treating a person less favourably because of their sex characteristics than someone without those characteristics, in similar circumstances.

For example, a woman with an innate variation of her sex characteristics went to see a new doctor. The patient required ongoing hormone treatment, but the doctor said that they won’t continue to prescribe the medication to her because their clinic doesn’t treat people like you.

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. Indirect discrimination happens when there is an unreasonable requirement that people with a certain attribute (or characteristic) have difficultly complying with, compared to others without that attribute.

For example, a man with intersex traits being disadvantaged when seeking treatment for ovarian cancer because a health service’s medical records system fails to recognise that a man may have some typically female sex characteristics.

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 direct or indirect discrimination, you may be able to lodge a complaint with us at the Commission.

What are sex characteristics?

‘Sex characteristics’ has a particular meaning under Queensland’s discrimination laws. It refers to a person's physical traits linked to their sex, such as their genitalia, reproductive organs, chromosomes, genes, hormones, and the changes that happen during puberty.

People with innate variations of sex characteristics may have physical traits visible at birth or that become apparent later in life, such as at puberty, that are not considered ‘typical’ for female or male bodies – for example, someone assigned male at birth developing breast tissue during their adolescence. However, this is not the case for every intersex person, and some innate variations of sex characteristics are only identifiable through medical imaging or genetic testing. There are over 40 known intersex variations that can each present in different ways and which may be associated with a medical diagnosis or clinical terms such as ‘differences or disorders of sex development’ or ‘DSDs’.

A person’s sex characteristics refer to their physical traits only, not their identity. Many intersex people suffer harm because of the assumptions other people may make about their bodies, their gender, their sexuality, or other parts of themselves, due to their sex characteristics.

Some intersex people may identify as being trans, non-binary, or gender diverse, while others do not.

Similarly, people with intersex traits may identify as being straight or queer or another sexuality.

Sex characteristics are different and separate to a person’s gender and sexuality.

When and where is this discrimination unlawful?

From 29 April 2024, discrimination on the basis of sex characteristics 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

unless an exemption applies.

Discrimination on the basis of sex characteristics became unlawful in Queensland on 29 April 2024 and is not retrospective. This means it only applies to conduct which occurs on or after 29 April 2024.

Examples of sex characteristics discrimination

A teenage girl with müllerian agenesis was examined by a doctor. During this examination, the doctor called in a group of medical students to observe her private parts without asking if she was comfortable with this, and made a comment about her not being able to ‘have sex with her future husband unless she gets this fixed.’
A person with Polycystic Ovary Syndrome (PCOS)/Hyperandrogenism was denied a job as a beauty therapist because of their visible facial hair and general androgynous appearance. The prospective employer told the person they were otherwise suited for the role but ‘I think our customers would feel uncomfortable with you’.
A woman with a variation of sex characteristics was made fun of regularly at work for having big hands and feet and was called offensive names by her co-workers like ‘giant’ or ‘boy-girl’. The woman disclosed to her manager that she had an intersex variation, asking the manager to address the behaviour. Her manager told her ‘but you look so normal for someone like that’.
A female student was bullied at school after she did not show the typical signs of puberty. She was called names like ‘anorexic’ and ‘no-boobs’ and excluded from social activities, leading to poor academic performance and mental health issues. After she disclosed the bullying and exclusion to her guidance counsellor and principal, the school did not take any steps to address the bullying behaviour, and the student dropped out of school early.
A sporting body told an intersex person they could not participate in a sports competition because the organisers assumed that athlete’s intersex traits would give them an unfair advantage over other competitors.
A prospective employee was asked to provide their full medical history before commencing work in an office manager position. After receiving the information that revealed that the applicant had a variation of sex characteristics which required ongoing medical attention, the employer withdrew the offer of employment.

When and where is different treatment okay?

The Act lists some exemptions that allow conduct that would otherwise be discriminatory. Whether or not an exemption applies will depend on individual circumstances.

The following are some of the exemptions that apply to sex characteristics discrimination.

Welfare measures

It is not unlawful to do an act to benefit the members of a group of people of with particular sex characteristics if the purpose is not inconsistent with the Act.

For example, a support group organised by people with androgen insensitivity syndrome is open to only those with androgen insensitivity syndrome.

Equal opportunity measures

It is not unlawful to do an act to promote equality of opportunity for people of a particular sex, but only until equality has been achieved.

For example, an employer encourages applicants to apply who have various protected attributes, including intersex persons, when advertising a role for a youth worker.

Competitive sport

There are no exemptions to allow sporting bodies to restrict participation people with an innate variation of sex characteristics in Queensland.