Gender identity and your rights

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.

Under Queensland's Human Rights Act, everyone 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.

Read more about the right to recognition and equality before the law.

In addition, Queensland’s Anti-Discrimination Act makes it unlawful to discriminate against someone on the basis of their gender identity. Under the Act, gender identity means a person’s internal and individual experience of gender, whether or not it corresponds with the sex assigned to the person at birth. Gender identity 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 gender, including name, dress, speech and behaviour.

We acknowledge that terminology is very important and that not all people like to be defined by the same terms. For the purpose of this information, we will refer to trans and gender diverse people, which is an umbrella term.

Discrimination against trans and gender diverse people

If you are treated less favourably than someone else (in the same or similar circumstances) because of your gender identity, it may be discrimination.

Discrimination can also happen when there is a rule or requirement that disadvantages transgender people more than cisgender people. Cisgender means that a person's assigned sex and gender identity are the same.

Gender identity discrimination examples

Some examples of gender identity discrimination covered by the Act include:

a beauty therapist refusing to treat a woman because she is trans
a workplace where transphobic jokes are constantly made in front of a staff member who identifies as a trans man
a trans woman is refused entry to a women's only gym
in the workplace, a non-binary person is constantly referred to as her and she, despite making it clear that they use they/him pronouns.
For more examples refer to our information about gender identity discrimination.
Read case studies of real complaints involving gender identity discrimination.

When and where is 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 trans and gender diverse people or promoting equal opportunity for members of the community are not discrimination under the Act.

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.

Unlawful vilification

Unlawful vilification is a public act that incites hatred towards, severe ridicule of, or serious contempt for a person or group because of their race, religion, sexuality, gender identity, or (from 29 April 2024) their sex characteristics.

Gender identity vilification has four elements, and a 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 is to detest or intensely dislike someone.
- Contempt is the attitude that someone is worthless or inferior.
- Ridicule is making fun of, deriding, or laughing at someone.
- Serious means important.
- Severe means harsh or extreme.
Gender identity is a substantial reason for the incitement.

Complaints about unlawful vilification are handled the Commission through our complaints process. Find out more about our complaints process.

Serious vilification

If unlawful vilification includes a threat of harm to a person or their property, or inciting others to threaten physical harm to a person or their property, it is a criminal offence. This is called serious vilification and is a police matter.

A person convicted of serious vilification can face a possible jail sentence of three years.

Gender identity vilification examples

Warning: These are real life examples and contain language or content which may offend or cause distress.

Unlawful vilification:

A radio host joked on air about being constantly bothered by a group of chicks with dicks freaks at a nightclub, warning other men about the disgusting tr*****s trying to trick them into going home with them.

Serious vilification:

A group of people went to the home of a transgender woman and yelled abuse and obscenities about her gender identity. One of the group then pulled wooden palings from the woman's fence and called out to the others, Has anyone got a box of matches so we can burn this fxxxing fag's place down?

Note: This was an actual case that was heard by the Queensland Civil and Administrative Tribunal ( Brosnahan v Ronoff [2011] QCAT 439,16 August 2011).

Read cases studies involving unlawful and serious vilification.

When is vilification lawful?

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.

Sexual harassment

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, if an offensive joke is made in the workplace about a trans person regarding their genitalia, this may be sexual harassment.

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, either in person or in writing, to supply information on which discrimination might be based.

Examples of unlawful requests for information might include:

a prospective employer asking you during a job interview about whether you are "pre or post-operative"
a security guard asking you if you have male or female genitalia when trying to enter a nightclub toilet.