Gender Identity

In the ACT it is against the law for someone to discriminate against you because of a characteristic that you have, or that someone thinks you have, in an area of public life such as employment, education, accommodation, provision of goods and services, and clubs.

In the ACT it is against the law for someone to discriminate against you because of your gender identity, including appearance or mannerisms or other gender related characteristics of a person, with or without regard to the person’s designated sex at birth.

Alteration of register of Births, Death and Marriages discrimination

It is also unlawful to discriminate against a person because the record of their sex has been altered under the Births, Deaths and Marriages registration Act 1997 (or an equivalent law in another jurisdiction).

Example of gender identity discrimination

Gender identity discrimination may involve not interviewing someone for a job, forcing a person who identifies as a woman to use male designated toilets, refusing a person service in a restaurant because of the way they look, or imposing conditions (for example when providing a service, accommodation or education) that don’t apply to others.

April, a transgender woman, was shopping for clothes in a boutique. She was told by the shop assistant that she was not allowed to use the change rooms to try on the clothes because it was a “women’s only space” and that she would just have to buy them without checking that they would fit. She was also told the shop would be unlikely to accept a return in the event that the clothes didn’t fit as “they would be used”.

Sean was born biologically female and transitioned to male six months ago. When he went to see a physiotherapist for an injury he sustained playing football, he was refused service because the physiotherapist said she “felt uncomfortable” treating Sean.

Meredith identifies as female. Her colleagues continually refer to her directly as ‘Sir’ and she repeatedly overhears comments from colleagues about herself using male pronouns such as ‘he’ and ‘him’. Meredith has asked people to address her appropriately but most make no effort to use suitable pronouns.

Are there any exceptions?

It is not unlawful to take special measures to help groups or individuals who are disadvantaged or have been unfairly treated and need support to fully enjoy their human rights. For example, some disadvantaged groups experience greater social and economic disadvantage than other groups in society and may therefore require special assistance to enjoy their rights to the same level that other Australians enjoy those rights. A service created to provide free legal advice only to transgender people could be an example of a special measure which is not unlawful discrimination.

The law contains specific exceptions making it lawful to discriminate in some circumstances. Examples where discrimination is not unlawful in the ACT include:

• carrying out an act that is necessary to comply with a Territory law or court order,
• the availability of membership or the services of a voluntary association, or
• appointing members of religious orders, such as priests or ministers.

Gender identity vilification

It is also against the law to vilify a person or group of people on the grounds of ‘gender identity’. Vilification means to publicly incite hatred towards a person or group of people which is likely to offend, insult, humiliate or intimidate that person or group of people.

Examples of gender identity vilification

• distributing pamphlets to the public ridiculing a person’s ‘gender identity’,
• wearing clothing with messages that denigrates a person’s ‘gender identity’, or
• insulting or inciting hatred against people because of their ‘gender identity’ by a speech at a public rally.

Are there any exceptions?

Vilification only extends to acts done ‘in public’ and does not include acts ‘done reasonably in good faith’.