For example, a trans woman loses her job after coming out as trans at work.
What is gender identity?
Gender identity refers to a person’s internal and individual experience of gender, which may be:
- the same as the sex assigned at birth
- different to the sex assigned at birth.
A person’s gender includes:
- their personal sense of their body
- freely chosen modifications to their body including by medical or surgical means, and
- other expressions of their gender including their name, dress, speech and behaviour.
What is gender identity discrimination?
Gender identity discrimination happens when someone is treated unfairly because of their gender identity.
Gender identity discrimination is unlawful whether or not:
- the assumptions the person made about your gender identity were correct
- the person who discriminated against you didn’t mean to discriminate or didn’t think they were discriminating against you.
The motive for the discrimination doesn’t matter – what matters is the effect of the behaviour.
Protection does not depend on whether you have:
- legally changed your name
- updated your birth certificate
- had medical or surgical treatment
- changed your appearance or clothing.
Discrimination on the basis of gender identity can be direct or indirect.
Direct discrimination happens when a person is treated worse than others because of their gender identity.
Indirect discrimination happens when a rule, policy, or practice is difficult – or impossible – to comply with because of a person’s gender identity, unless it is reasonable in the circumstances.
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 someone because of their connection with a person of a particular gender identity. This includes discrimination based on their relationship or association with someone of a particular gender identity, such as a:
- friend
- family member
- co-worker.
For example, a non-binary person and their friend are told to leave a shop because they are ‘putting other customers off’.
When discrimination may be lawful (Exemptions)
There are some circumstances when discrimination on the basis of gender identity is allowed. These are called ‘exemptions’.
Exemptions apply only in limited situations and only when they are reasonable.
Examples include:
Genuine occupational requirements
It may be lawful to discriminate on the basis of gender identity in a work context if there is a ‘genuine occupational requirement’ that the person be a particular gender identity.
For example, a theatre production seeks a person of a particular gender identity to play the role of someone with a particular gender identity.
For example, a theatre production seeks a person of a particular gender identity to play the role of someone with a particular gender identity.
Work in a person’s home
It may be lawful to discriminate on the basis of gender identity when employing someone to work in your home to do domestic work or look after your children.
Equal opportunity measures
Programs designed to promote equal access or reduce disadvantage for persons who are gender diverse or persons of a particular gender identity may be lawful.
For example, it may be lawful for a school or council to offer a special program only for gender diverse youth.
What is vilification on the basis of gender identity?
Vilification on the basis of gender identity is unlawful.
Vilification happens when a person does a public act that incites hatred, serious contempt, or severe ridicule of a person or group because of their gender identity (e.g., because they are transgender, gender diverse, or non-binary).
Serious vilification is when someone additionally threatens physical harm to a person or their property or incites others to threaten physical harm to a person or their property. Serious vilification is a criminal offence.
What you can do
If you think you have been discriminated against because of your gender identity, you can contact the Queensland Human Rights Commission.