Sex characteristics and your rights
On 29 April 2024, changes to the Anti-Discrimination Act 1991 came into effect. The definition of ‘gender identity’ has changed, and a new attribute of ‘sex characteristics’ has been added as a prohibited ground of discrimination. For alleged discrimination that took place before 29 April 2024, the previous laws will still apply. If you require more information about this call us on 1300 130 670.
Under the Human Rights Act 2019, every person in Queensland 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, from 29 April 2024 Queensland's Anti-Discrimination Act makes it unlawful to discriminate on the basis of sex characteristics.
Under the Act, sex characteristics means a person’s physical features and sexual development relating to a person’s sex. Sex characteristics are biological and include genitalia, reproductive organs, hormones, chromosomes, and the changes that happen to the body during puberty.
Sex characteristics refer to physical traits only, not a person’s identity. Sex characteristics are different from and separate to a person’s gender identity and sexuality. 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 use the term ‘innate variations of sex characteristics’. For people who do not have innate variations of sex characteristics we will use the term ‘endosex’.
Discrimination against people with variations of sex characteristics
If you are treated less favourably than someone else (in the same or similar circumstances) because of your sex characteristics, it may be discrimination.
Discrimination can also happen when there is a rule or requirement that disadvantages people with innate variations of sex characteristics more than people who are endosex.
Sometimes, discrimination happens because someone makes an assumption about your sex characteristics.
People who have innate variations of sex characteristics can also experience discrimination because of a presumed attribute that they do not have. For example, an individual mistakenly assumes your identity to be transgender and subsequently treats you less favourably based on that assumption. This example would constitute an instance of presumed 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 people with innate variations of sex characteristics, or promoting equal opportunity for members of the community are not discrimination under the Act.
For examples of what might constitute unlawful discrimination, refer to further information about discrimination on the basis of sex characteristics.
Vilification on the grounds of sex characteristics
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.
If someone publicly incites hatred towards, serious contempt for, or severe ridicule of you personally because you have innate variation of sex characteristics, it may be unlawful vilification.
Publicly inciting hatred towards, serious contempt for, or severe ridicule of a group of people because they have innate variation of sex characteristics, may also be 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 sex characteristics. Unlawful vilification is made up of all of the following elements:
- a public act
- that incites;
- hatred towards, serious contempt for, or severe ridicule of
- a person, or a group of people
- because of their sex characteristics.
Incite means to urge on or promote. It is not necessary to show that anyone was actually incited.
Complaints about unlawful vilification may be lodged with us here at the Commission.
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.
Find out more about vilification law.
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 the private parts of a person with variations of sex characteristics, this may be sexual harassment.
Find out more about sexual harassment.
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. It isn’t against the law to ask for this information if the person asking for it can prove it was ‘reasonably required’ for a purpose that did not involve discrimination.
An example of an unlawful requests for information might include seeking the medical records of a person with innate variations of sex characteristics, where this information is not reasonably required, and could be used as a way to discriminate against the person.
