New protection against discrimination on the basis of sexual orientation, gender identity and intersex status
What is changing?
From 1 August 2013 it became unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law. Same-sex couples are also protected from discrimination under the definition of ‘marital or relationship status’. These new protections will particularly apply to lesbian, gay, bisexual, trans, gender diverse and intersex people.
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (SDA Amendment Act) inserts these new grounds into the Sex Discrimination Act 1984 (Cth) (SDA).
People can make complaints to the Australian Human Rights Commission if they believe they have been discriminated against on the basis of these new grounds.
Most states and territories have some form of protection against discrimination on the basis of sexual orientation and gender identity; however, the SDA Amendment Act introduces more inclusive definitions and addresses gaps such as a lack of coverage for acts or practices of the federal government. It also includes the new ground of intersex status.
What is discrimination on the basis of sexual orientation, gender identity and intersex status?
Sexual orientation means a person’s sexual orientation towards:
a) persons of the same sex or
b) persons of a different sex or
c) persons of the same sex and persons of a different sex.
Some terms used to describe a person’s sexual orientation include gay, lesbian, homosexual, bisexual, straight, heterosexual. The new definition does not use labels, as these may be offensive or inaccurate; however, it is intended to cover these orientations.
Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person. This includes the way people express or present their gender and recognises that a person’s gender identity may be an identity other than male or female.
Some terms used to describe a person’s gender identity include trans, transgender and gender diverse. The SDA does not use these labels however it is intended to cover these identities and more.
The SDA provides protection from discrimination for people who identify as men, women and neither male nor female. It does not matter what sex the person was assigned at birth, or whether the person has undergone any medical intervention.
Intersex status ‘means the status of having physical, hormonal or genetic features that are:
a) neither wholly female nor wholly male or
b) a combination of female and male or
c) neither female nor male.’
Being intersex is about biological variations, not about a person’s gender identity. Intersex people have a diversity of bodies and identities.
The amendments also extend the definition of marital status to ‘marital or relationship status’ which includes de facto same-sex couples.
Discrimination on the new grounds is unlawful in the same circumstances as for other grounds already covered by the SDA (including sex, pregnancy, potential pregnancy, breastfeeding and family responsibilities). The new changes do not affect the existing grounds and they will continue to operate unchanged. People can continue to make complaints alleging sex discrimination.
As is currently the case under the SDA, both direct and indirect discrimination will be unlawful.
Direct discrimination is treating another person less favourably on the basis of their sexual orientation or gender identity or intersex status, than someone without that attribute would be treated in the same or similar circumstances.
Indirect discrimination is imposing, or proposing to impose, a requirement, condition or practice that has, or is likely to disadvantage people with a particular sexual orientation or gender identity or intersex status, and which is not reasonable in the circumstances.
Are there exemptions to unlawful discrimination?
Yes. The SDA includes provisions that provide that in certain circumstances the discrimination will not be unlawful. These are called either ‘exceptions’ or ‘exemptions’. Some of the existing provisions in the SDA will now also apply to the new grounds as well as introducing new exemptions specifically for sexual orientation, gender identity and intersex status. These include for conduct in compliance with the Marriage Act 1961 (Cth), for conduct in compliance with prescribed Commonwealth, State or Territory laws, and for requests for information and record keeping in relation to sex and/or gender.
The SDA Amendment Act also qualifies the exemptions for religious organisations to the effect that it does not apply to conduct connected with the provision of Commonwealth-funded aged care services.
Where can I get more information?
The Commission has prepared a more detailed update on the changes to the SDA:
The Commission’s website contains detailed information on its Investigation and Conciliation Service.
You can also contact the Commission:
Complaint Info line: 1300 656 419
TTY: 1800 620 241
Fax: (02) 9284 9611
If you need an interpreter you can call the Translating and Interpreting Service (TIS) on 131 450 and ask to be connected to the Australian Human Rights Commission.
If you are deaf or have a hearing impairment you can contact us by TTY on 1800 620 241. If you are deaf or have a hearing or speech impairment you can also contact us through the National Relay Service (NRS) on 133 677. If you need an Auslan interpreter, the Commission can arrange this for you.
If you are blind or have a vision impairment, the Commission can provide information in alternative formats on request.
Previous Commission work
The Commission has long advocated for the introduction of federal laws that protect people from discrimination on the basis of their sexual orientation, gender identity or because they are intersex. This protection is essential and would send a powerful message to our community regarding equality. The Commission released a report in 2011 following detailed consultation on how these protections could be included in federal law. The Commission has also provided a number of submissions to Government and Senate Committee Inquiries.