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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Sex Discrimination


Sex discrimination occurs when a person is treated less favourably than someone of the opposite sex would be treated in the same or similar circumstances. This includes if a person imposes or aims to impose a condition, requirement or practice that disadvantages or is likely to disadvantage someone of a particular sex.

The Sex Discrimination Act 1984 protects people from sex discrimination and aims to “promote recognition and acceptance within the community of the principle of the equality of men and women”.

What does the Sex Discrimination Act cover?

The Act makes it illegal to discriminate against a person on the basis of their sex, gender identity, sexual orientation, intersex status, marital or relationship status, family responsibilities, or because they are pregnant or breastfeeding.

The Act covers most areas of public life, including:

  • employment;
  • insurance and superannuation;
  • education;
  • goods and services;
  • accommodation;
  • land sales;
  • club activities;
  • Commonwealth laws and programs.

Gender identity

“Gender identity” means the identity, mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

Sexual orientation

“Sexual orientation” refers to a person’s sexual orientation towards people of the same sex, different sex or both.

Intersex status

“Intersex status” means the status of having physical, hormonal or genetic features that are neither wholly female or wholly male, or a combination of male and female, or neither male nor female.

Marital or relationship status

This status includes being separated, divorced, a former de factor partner or the surviving spouse or de facto partner of a person who has died.

Family responsibilities

Family responsibilities include caring for or supporting children or other immediate family members. The definition of immediate family members under the Act extends to grandchildren, or a former spouse or former de facto partner.

Pregnancy and breastfeeding

Discrimination on the basis of pregnancy includes the fact the woman is capable of having children, has expressed a desire to have children, or is likely, or perceived as being likely, to become pregnant.

“Breastfeeding” includes the act of breastfeeding and breastfeeding over a period of time, as well as the act of expressing milk.

Reasonableness test for sex discrimination

If a person imposes or aims to impose a condition, requirement or practice that disadvantages or is likely to disadvantage someone of a particular sex, the condition, requirement or practice must be reasonable. Factors to be considered in deciding this include:

  • the nature and extent of the disadvantage;
  • the likelihood of overcoming or mitigating the disadvantage;
  • whether the disadvantage is proportionate to the result sought by the condition, requirement or practice.

Exemptions

The Act contains several exemptions where discrimination on the ground of sex is not unlawful. This includes where being of a particular sex is a genuine occupational requirement, such as:

  • when there is a need to preserve decency or privacy in searches, or for the fitting of sex-specific clothing;
  • in entertainment, photographic or modelling work for reasons of authenticity, aesthetics or tradition;
  • when the person is required to enter a toilet or changeroom ordinarily used by people of the same sex;
  • when a position requires a person to live on premises and the premises do not have separate sleeping or bathroom facilities for people of each sex;
  • where a position involves the care of a child in their home.

There is also an exemption for charities to provide services for a particular sex, and for religious bodies, religious schools and volunteer groups.

Terms or conditions for superannuation, policies for insurance, or exclusion rules for participation in sport which discriminate on the basis of sex may also not be considered unlawful.

Special measures

Special measures may be taken to achieve equality for people on the basis of their sex, gender identity, sexual orientation, intersex status, marital or relationship status, family responsibilities, or because they are pregnant or breastfeeding. The special measure can be undertaken solely for that purpose, or in conjunction with other purposes.

Sexual harassment

Sexual harassment is a type of sex discrimination and is the most common complaint under the Act. It is defined as the unwelcome conduct of a sexual nature, such as sexual advances, requests for sexual favours, or statements of a sexual nature to, or in the presence of, a person. Sexual harassment occurs in circumstances in which a reasonable person, considering all the circumstances, would have anticipated the person being harassed would be offended, humiliated or intimidated.

Australian Human Rights Commission (AHRC)

The AHRC is a federal government agency that handles complaints of sex discrimination under the Act. A complaint can be made online or using a hard copy form. The AHRC works with a wide range of groups to prevent sex discrimination.

Decisions made by the AHRC can be reviewed by the Administrative Appeals Tribunal.

For advice or representation in any legal matter, please contact Armstrong Legal.

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