WHAT IS DISCRIMINATION
Discrimination is being treated differently, in a negative way. Gay men and lesbians still face discrimination and harassment in a many different situations. In a survey done by the Victorian Gay and Lesbian Rights Lobby in 2000, Enough is Enough, 84% of gay, lesbian or transgender respondents had experienced discrimination or harassment. The ongoing experience of discrimination has been confirmed in the 2005 report ‘Not Yet Equal'. Contact the lobby for more information about its survey reports.
In April 2006 the federal Human Rights and Equal Opportunity Commission released a discussion paper Same-sex: Same entitlements, as part of a national inquiry into discrimination against people in same-sex relationships. The inquiry is focused on financial and work-related entitlements and benefits. Consultations will take place across Australia.
State and federal legislation make discrimination and harassment unlawful in certain areas and on certain grounds. In Victoria, it is proposed that discrimination legislation be extended.
Sexual harassment
The Equal Opportunity Act 1995 (Vic) and the Sex Discrimination Act 1984 (Cth) both prohibit sexual harassment in the areas listed below. Sexual harassment means unwelcome behaviour of a sexual nature, which offends, humiliates or intimidates you. There is a legal test that a reasonable person could have expected that this behaviour would have affected you this way. It can include negative jokes and remarks about someone's sexuality, and applies regardless of the gender of the people involved.
Areas in which discrimination may be unlawful
The Equal Opportunity Act makes discrimination unlawful in the following areas:
- employment and paid work (see ‘Work and money')
- education
- provision of goods and services (including medical and legal services)
- accommodation
- disposal of land (including transfer and sale)
- sport
- local government
- clubs and community organisations (only those on Crown land or who receive government funding).
The Sex Discrimination Act makes discrimination unlawful in most of these areas. It also makes discrimination unlawful in the administration of federal laws and programs or if you have made a request for information. In the area of work, it covers discrimination on the basis of sex, pregnancy, potential pregnancy, marital status and family responsibilities.
GROUNDS OF DISCRIMINATION
The Equal Opportunity Act makes it unlawful to discriminate on the basis (grounds) of gender, sex, age, physical features, pregnancy, breastfeeding, status as a parent or carer, race, industrial activity, and religious and political beliefs. The Sex Discrimination Act makes it unlawful to discriminate on the basis of sex, marital status, pregnancy or (in the area of work) potential pregnancy and family responsibilities,
Sometimes people are discriminated against because of more than one characteristic, for example sexual orientation and race. You can also be discriminated against because you have a personal association with someone because they have one of these characteristics.
The Equal Opportunity Act also makes discrimination on the following grounds unlawful:
Sexual orientation
Sexual orientation means ‘homosexuality (including lesbianism), bisexuality or heterosexuality'.
Gender identity
Under the Act, gender identity means when a person of one sex (or indeterminate sex) identifies as a member of the other (or a particular) sex, for example by adopting characteristics of a member of that sex.
These are not grounds in federal anti-discrimination legislation. However, the Human Rights and Equal Opportunity Commission can investigate and conciliate a complaint of sexual preference discrimination in employment (see ‘Work and money' in relation to the federal Workplace Relations Act 1996).
Lawful sexual activity
Before the addition of ‘sexual orientation' in 2000, this was the main ground used specifically by gay men and lesbians to complain about discrimination. There is no such ground in federal legislation.
Marital status
This comes under both Victorian and federal law. Under the Equal Opportunity Act 1995 (Vic), ‘marital status' includes being a domestic partner, for example living together ‘on a genuine domestic basis', regardless of gender. You don't have to live together for a set period of time to get protection from discrimination under this Act.
Under the Sex Discrimination Act 1984 (Cth) ‘marital status' doesn't include being in a same-sex relationship. But you can complain about discrimination on the basis of your ‘single' (unmarried) status.
Good news
The Federal Court has ruled that denying a single woman access to assisted reproductive technology (ART) breaches the Sex Discrimination Act. This decision was unsuccessfully challenged in the High Court (see ‘Parents and children').
Physical features
This means your bodily characteristics, including height, weight, body shape, disfigurement, skin condition, scar or birthmark, but may not include the way you dress or adorn yourself.
Impairment
Under the Equal Opportunity Act and the Disability Discrimination Act 1992 (Cth) it is unlawful to discriminate against someone because they:
- have HIV/AIDS
- are thought or presumed to have HIV/AIDS
- may have HIV/AIDS in the future
- are a carer of someone with AIDS.
Discrimination is allowed if it is ‘reasonably necessary' to protect the health, safety or property of any person or the public generally.
At work, the employer must consider if the person can fulfil the ‘inherent requirements' of the job, in other words what is necessary to get the basic job done.
EXCEPTIONS
There are exceptions in the Equal Opportunity Act. These allow some discrimination. They include:
Insurance
Insurance companies can impose different terms or refuse cover to someone on the ground of impairment if it can be supported by statistical data, for example smokers are more likely to become ill or die. It may be reasonable to treat someone with HIV differently. It is not reasonable to assume that all gay men pose a greater insurance risk.
Religious beliefs or principles
Discrimination is sometimes allowed if it is based on genuine religious beliefs or principles. This may include some actions of religious bodies or schools.
Small business
An employer who employs no more than the equivalent of five full-time employees (not including family members) can discriminate when hiring staff, but not once you are employed.
Exemptions are also available under the Sex Discrimination Act, for example where an actor for a particular role requires a certain gender.
WHAT YOU CAN DO ABOUT DISCRIMINATION
You can contact:
Victorian Equal Opportunity and Human Rights Commission
(formerly Equal Opportunity Commission (Victoria))
Tel 9281 7100 or 1800 134 142 (country callers) 9281 7110 (TTY)
www.eoc.vic.gov.au
The commission can advise you of your legal options under Victorian law and give you basic information about federal law. Your complaint will be dealt with confidentially. The commission is not a court or tribunal, but operates through conciliation.
Human Rights and Equal Opportunity Commission (HREOC)
Tel 1300 656 419
www.hreoc.gov.au
This commission deals with complaints under federal law. It has a similar process to the state commission. You may need to make a decision about which commission you want to apply to, as there may be different requirements or outcomes available.
You need to think about what outcome you want, for example, an apology, compensation, a promise to employ or promote you or make changes to accommodate you (depending on the case), or a policy change.
Discrimination can be difficult to prove. However, changes often occur because someone has made a complaint, and you may ultimately help someone else, even if it doesn't improve your immediate situation.
If you are victimised because you have complained, you can make another complaint to a commission about that.
DISCRIMINATION DUE TO GENDER IDENTITY
Victoria has joined most other Australian states and territories in giving people protection against discrimination on the grounds of gender identity.
The Equal Opportunity Act makes it unlawful to discriminate against someone because of their gender identity. This includes cross-dressers, intersex people, and anyone who has had, is undergoing or is planning to undergo a gender reassignment. When a transgender person transitions in the workplace their employer is entitled to ‘adequate notice'. ‘Adequate' means enough time to allow the employer to comply with the Act, for example, by reviewing policy and training staff. The Victorian Equal Opportunity and Human Rights Commission has prepared guidelines for employers to help them comply with the law (see their website at www.eoc.gov.au).
LEGAL STATUS OF TRANSGENDER PEOPLE
Although transsexuality is legal, the legal status of transgender people in Victoria has not been clear until recent reforms.
Birth certificates - The Victorian Government has changed the law so that, from 1 January 2005, birth certificates can be changed to reflect a person's affirmed/reassigned gender. This is only possible, however, when the person has undergone sex affirmation surgery and is not already married.
Other forms of identification - A Victorian driver's licence doesn't state sex. The motor vehicle registry will change their records if you send them a letter from your doctor. You can also get the sex on your passport changed if you send a change of name registration form and a letter from your doctor.
Marriage - In October 2001, the Family Court decided in a case that a post-operative female to male transsexual was legally a man for the purpose of marriage and was legally able to marry a woman. In this case, the couple had asked the court for a declaration that their marriage was valid - they had been able to marry in NSW because in that state an unmarried adult who has undergone sexual reassignment surgery can have their birth certificate changed to show their reassigned gender.
See: The Good Tranny Guide, listed in ‘Where to get help'
DISCRIMINATION AT WORK
One of the most common forms of discrimination experienced by gay men, lesbians and transgender people is harassment at work. This can take the form of jokes, snide remarks, put-downs, isolation and failing to use the transgender person's preferred name and pronouns.
This can affect work performance, chances of promotion and access to other benefits such as training and professional development.
Even though workplace laws have changed, it is still unlawful to be discriminated against at work. You can complain about this kind of discrimination. If you are worried about the confidentiality of your complaint in the workplace, talk to the Victorian Equal Opportunity and Human Rights Commission. They can tell you what your options are.
If you think you are experiencing discrimination or harassment, make sure you consult a doctor, counsellor or similar professional. Apart from helping you to cope, any notes taken may become important evidence in a legal case.
It is also a good idea to take notes yourself about what is happening. Notes taken around the time of the incidents can be valuable evidence.
What to do:
Anti-discrimination legislation
You can make a complaint under the Equal Opportunity Act or the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
Workplace Relations Act
Under this federal Act it is unlawful to dismiss an employee because of their sexual preference, or because of any of the other grounds of discrimination such as sex or marital status. You only have 21 days to lodge a complaint with the Australian Industrial Relations Commission, call 8661 7777 or go to www.airc.gov.au See also www.workchoices.gov.au
Union
You can talk to your union representative. Some unions are better than others in dealing with these issues. If you don't have any success with your union, contact the Women's and Equity Officer or UNITE at the Victorian Trades Hall Council, on 9662 3511 or go to www.vthv.org.au UNITE is a trade union group providing support and resources for gay, lesbian, bisexual or transgender union members who are experiencing discrimination in the workplace.
Award or enterprise agreement
The one relevant to your job may have anti-discrimination provisions.
WorkCover
If the harassment is causing you stress and you need to take time off work, you may be able to make a WorkCover claim. See your doctor to start the process.
Professional association
If you or the person you are complaining about are members of a professional association, you can talk to that association.
Police
If you have been physically assaulted or threatened, you can complain to the police (see ‘Violence').
YOUNG PEOPLE & SCHOOLS & OTHER EDUCATIONAL INSTITUTIONS
Educational institutions have a responsibility to provide an environment free of harassment and bullying. They should all have policies to deal with harassment and bullying. If you are having trouble at school because of your sexual orientation or gender identity, talk to someone you can trust, such as a teacher or school or university counsellor.
It is unlawful for a school or other educational institution to discriminate against you because of your sexual orientation. If you believe you have been treated in a discriminatory way you can complain to the Victorian Equal Opportunity and Human Rights Commission. The commission has also developed professional development programs to help schools meet their obligations and to promote safe and inclusive practices.
If there is no one at school who can help, you can contact an outside agency for advice about what to do:
Action Centre
Tel 9654 4766 or 1800 013 952 (country callers)
www.fpv.org.au
Outreach
www.also.org.au/outreach/
Parents and Friends of Lesbians and Gays (PFLAG)
Tel 9827 8408
www.pflag.org.au
OutProud
Resource site for gay, lesbian, bisexual and transgender youth.
www.outproud.org
Same Sex Attracted Friendly Environments in School
Aims to support school communities in challenging homophobia and create safe learning environments
www.ssafeschools.org.au
Rainbow Network
Information on Victoria-wide projects for young people and resources for schools
www.rainbownetwork.net.au
Victorian Equal Opportunity and Human Rights Commission
(formerly Equal Opportunity Commission (Victoria))
Tel 9281 7100 or 1800 134 142 (country callers)
TTY 9281 7110
