Fair Work Commission

Sex (gender identity)

The Sex Discrimination Act 1984 (Cth) provides that a person discriminates against another person on the ground of the gender identity of a person if the discrimination occurs by reason of:

• the gender identity of the aggrieved person
• a characteristic that applies generally to persons who have the same gender identity as the aggrieved person, or
• a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person.^[1]

This includes a person with an intersex status.^[2]

The sex of a person may include the gender assigned to a post-operative transsexual.^[3]

Sexual harassment has been found to constitute sex discrimination.^[4] Similarly, sexual harassment may constitute adverse action against a person by reason of the person’s sex.

Whilst the dictionary meaning of ‘harass’ implies repetition, one act may be sufficient.^[5]

A person sexually harasses another person if:

• the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
• the person engages in other unwelcome conduct of a sexual nature in relation to the other person;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.^[6]

Conduct motivated by general assumption and stereotypes, known as ‘imputed characteristics’, can constitute conduct based on sex.^[7]

Case example

Sexual orientation

The Sex Discrimination Act 1984(Cth) defines sexual orientation as a person’s sexual orientation towards:

• persons of the same sex
• persons of a different sex, or
• persons of the same sex and persons of a different sex.^[8]

It is unlawful to take adverse action on the basis that a person is, or is believed to be lesbian, gay, bisexual or transgender.^[9]

References