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:
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:
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]
The Sex Discrimination Act 1984(Cth) defines sexual orientation as a person’s sexual orientation towards:
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]
[1] Sex Discrimination Act 1984 (Cth) s.5B.
[2] Sex Discrimination Act 1984 (Cth) s.5C.
[4] Birch v Wesco Electrics (1966) Pty Ltd (2012) 218 IR 67 [81]; citing Aldridge v Booth (1988) ALR 1 [16]‒[17]; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 274‒276; Elliott v Nanda & Commonwealth (2001) 111 FCR 240, 278-282.
[6] Anti-Discrimination Act 1977 (NSW) s.22A.
[8] Sex Discrimination Act 1984 (Cth) s.4.
[9] Sex Discrimination Act 1984 (Cth) s.5A; see also ‘Q&As on business, discrimination and equality’ International Labour Organization, 01 February 2012.