Last Updated 17 August 2021
The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) implements Australia’s international obligations under the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (contained in the schedule of the Sex Discrimination Act) and certain aspects of the International Labour Organisation (ILO) Convention 156.
The Sex Discrimination Act outlaws sex discrimination on the basis of:
- sexual orientation
- gender identity
- intersex status
- marital or relationship status
- family responsibilities
- pregnancy or potential pregnancy
in important areas of everyday life such as:
- provision of goods, services and facilities
- transfer of land
- licensed clubs
- administration of Commonwealth laws and programs.
What is sex discrimination?
Sex discrimination is defined as the less favourable treatment of a person because of their sex. Discriminatory treatment is treatment that is less favourable than the treatment accorded to people of the opposite sex in the same or similar circumstances (s 5 Sex Discrimination Act). Sex discrimination also includes less favourable treatment because of characteristics that generally appertain to a sex (e.g. women are smaller than men) or because of characteristics merely imputed to a sex (e.g. women are cowardly).
Sexual orientation (s 5A Sex Discrimination Act) means a person’s sexual attraction towards persons of the same sex or gender, persons of a different sex or gender, or towards persons of more than one sex or gender. Some terms used to describe a person’s sexual orientation include gay, lesbian, homosexual, bisexual, straight or heterosexual. The definition does not use labels, however, it is intended to cover these orientations as well as other diverse sexualities.
Gender identity (s 5B Sex Discrimination Act) means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person. The Act provides protection from discrimination for people who identify as men, women, transgender people, non-binary people and people with all other gender diversities. It does not matter what sex the person was assigned at birth or whether the person has undergone any medical intervention.
Intersex status (s 5C Sex Discrimination Act) means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, are a combination of female and male or are neither female nor male. Being intersex is about biological variations, not about a person’s gender identity. An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or other sex.
Marital or relationship status includes a person’s status of being any of the following (s 6 Sex Discrimination Act):
- married, but living separately and apart from their spouse
- the de facto partner of another person
- the de facto partner of another person, but living separately and apart from that other person
- the former de facto partner of another person
- the surviving spouse or de facto partner of a person who has died.
Similarly, discrimination on the ground of marital or relationship status occurs when a person is treated less favourably because of their marital or relationship status (or its characteristics) than people of different marital or relationship status would be treated in the same or similar circumstances (s 6 Sex Discrimination Act).
Discrimination on the grounds of pregnancy (or its characteristics) or potential pregnancy occurs if a person who is or may be pregnant (or who has expressed a desire to be pregnant, or is perceived to be likely to become pregnant) is treated less favourably than someone who is not pregnant or potentially pregnant would be treated in the same or similar circumstances. The Sex Discrimination Act has the additional requirement that the treatment of the pregnant person must be unreasonable in the circumstances (s 7B).
Treating a person who is pregnant more favourably than another person who is not pregnant is not discrimination under the Sex Discrimination Act.
Discrimination on the basis of family responsibilities occurs when an employer treats an employee with family responsibilities less favourably than one without such responsibilities in the same or similar circumstances. Family responsibilities include responsibilities of the person to care for or support a dependent child of the person or any other immediate family member who is in need of care and support (s 4A Sex Discrimination Act).
Discrimination on the basis of breastfeeding occurs when a person discriminates against a person on the ground of breastfeeding (s 7AA Sex Discrimination Act). It also includes the act of expressing milk and the process of breastfeeding over a period of time.
Reasons for sex discrimination
If someone performs an act for more than one reason, and one of those reasons is sex discrimination against a person, then that act is unlawful (s 8 Sex Discrimination Act). It does not matter if the reason that involves discrimination is not the main or substantial reason for the action. It is enough if discrimination is only a minor reason for doing the act. However, some connection between the discrimination and the complainant’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, family responsibilities, pregnancy, potential pregnancy or breastfeeding status must be evident.
Sex discrimination in employment
The Sex Discrimination Act applies to all aspects of employment (e.g. full-time, part-time, temporary or casual) including:
- advertising requirements for a job. Employment agencies, qualifying bodies and some trade unions are also forbidden to discriminate on the basis of sex, marital status or pregnancy (ss 14–19)
- training and promotion applying to partnerships of six people or more in relation to dealings between partners and invitations to become partners
- terms and conditions of employment; this applies to commission agents (e.g. real estate agents and contract workers).
The Sex Discrimination Act also deals with sexual harassment including in the workforce. Sexual harassment is broadly defined to include an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, which can include statements (oral or written) of a sexual nature. It occurs when a reasonable person would have anticipated in the circumstances that the person harassed would be offended, humiliated or intimidated (s 28A Sex Discrimination Act).
A range of circumstances can be taken into account when considering whether sexual harassment has occurred. These include the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin of the person harassed; the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; any disability of the person harassed; and any other relevant circumstance.
Sexual harassment is prohibited across a number of areas including in employment, occupational qualifying bodies, registered organisations, employment agencies, educational institutions, providers of goods and services and accommodation, land dealings, within clubs and in Commonwealth programs.
A person can also complain about sexual harassment if they have good reason to believe that if they refuse a sexual advance or object to a person’s conduct, they will be disadvantaged in their job or they are actually disadvantaged in their job as a result of the refusal or objection. There are no exemptions for sexual harassment.
The courts have found that ‘work’ is to be given a broad interpretation and can include situations such as staff accommodation quarters and work-related conferences.
Affirmative action in employment
The Sex Discrimination Act allows for affirmative action in employment policies (i.e. policies aimed at ensuring that people of each sex may enjoy equal employment opportunities). The philosophy behind affirmative action is that all potential employees should be judged on the basis of merit not on a prejudgment about what persons of one sex are able to achieve in employment.
The Workplace Gender Equality Act 2012 (Cth) requires businesses employing over 100 people and higher education institutions to lodge annual reports containing information about gender equality indicators. Subject to some exceptions, these reports are made available to the public.
Sex discrimination in education
Section 21 of the Sex Discrimination Act prohibits discrimination in the following areas of education:
- admission to an educational institution
- the terms and conditions of admission
- access to benefits provided by the institution
- expulsion of students or subjecting them to any other detriment.
The Sex Discrimination Act applies to all levels of education.
Section 28F of the Sex Discrimination Act protects students from sexual harassment by staff of schools and tertiary institutions (universities and colleges of advanced education), and it protects staff and adult students from harassment by adult students.
Sex discrimination in the provision of goods, services and facilities
Section 22 of the Sex Discrimination Act seeks to ensure that no-one can be discriminated against in getting goods, services and using facilities because of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy or breastfeeding status. This includes refusals to provide the terms and conditions of provision and the manner of provision of goods, services and facilities.
Sex discrimination in accommodation
A person cannot be refused accommodation, offered different conditions, evicted or put lower on a waiting list because of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy or breastfeeding status (s 23 Sex Discrimination Act). There is an exemption for accommodation provided by a religious body in the provision of Commonwealth-funded aged care.
Sex discrimination in clubs and sport
Licensed clubs cannot discriminate against people because of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy or breastfeeding status (s 25 Sex Discrimination Act).
This means a club cannot discriminate in deciding who will be allowed to be a member, the terms and conditions of a person’s membership and their access to club facilities. This does not mean, however, that it is unlawful to discriminate against a person on the ground of the person’s sex if membership or use and enjoyment of benefits of the club is available to persons of a different sex only. A range of considerations arise for such cases and are listed in the Sex Discrimination Act (s 25(3)-(5)).
The Sex Discrimination Act provides for a number of exemptions in all areas outlined above.
Some jobs genuinely require a person of a particular sex. When a preference for an employee of a particular sex reflects a genuine occupational qualification, the Sex Discrimination Act provides that it is not unlawful to employ a person of that particular sex (s 30(1) Sex Discrimination Act). Section 30(2) lists circumstances in which a person’s sex will be a genuine occupational qualification. Such circumstances arise when:
- the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of the opposite sex
- the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the relevant sex
- the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex
- the duties of the position include the conduct of searches of the clothing or bodies or persons of the relevant sex
- the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex
- the occupant of the position is required to live on premises provided by the employer or principal of the occupant of the position, and the premises are not equipped with separate sleeping accommodation and sanitary facilities for persons of each sex
- the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of the opposite sex, and it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for persons of each sex
- the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress
- the position is declared by regulations made for the purposes of the Sex Discrimination Act to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex.
This list provided in the Sex Discrimination Act is not exhaustive, and a genuine occupational qualification may be claimed in other appropriate situations.
Church schools can discriminate in choosing employees if it is necessary to prevent breaching any religious rules (s 38 Sex Discrimination Act).
Religious bodies can also discriminate when choosing people to perform religious duties or functions (s 37 Sex Discrimination Act). Additionally, a minister of religion, marriage celebrant or chaplain may refuse to solemnise a marriage where:
- the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister of religion, marriage celebrant or chaplain’s religious body or religious organisation
- the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion
- the minister of religion, marriage celebrant or chaplain’s religious beliefs do not allow them to solemnise the marriage (s 40(2A) Sex Discrimination Act).
Some services, particularly medical services such as abortion and vasectomy, can only be provided to one sex. The Sex Discrimination Act does not make the provision of those services unlawful (s 32 Sex Discrimination Act), although such acts might be unlawful on other grounds.
Employers are not required to provide the same standard of accommodation for employees of different marital or relationship status, sex or who are pregnant, when it is unreasonable to expect them to do so (s 34 Sex Discrimination Act).
Discrimination on the ground of sex or marital or relationship status is allowed in certain circumstances related to jobs involving the residential care of children (s 35 Sex Discrimination Act).
Gifts to charities that involve discrimination against a particular sex, marital or relationship status or pregnant women are lawful (s 36 Sex Discrimination Act).
Voluntary bodies, such as service organisations, are exempt from the Sex Discrimination Act as far as membership is concerned (s 39 Sex Discrimination Act).
Superannuation schemes in existence as at 1 July 1994 can discriminate against people on the grounds of sex or marital or relationship status (s 41B Sex Discrimination Act), but funds in existence after that date can only discriminate on actuarial or statistical grounds (s 41A Sex Discrimination Act). Insurance companies can also discriminate if they can produce statistics to justify their discrimination (s 41 Sex Discrimination Act).
It may not be unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant (s 42 Sex Discrimination Act). This does not apply to sporting activities for children not yet aged 12, coaching, umpiring and refereeing, sports administration or prescribed activities.
The Sex Discrimination Act no longer provides that women can be discriminated against in relation to performing combat duties with the Australian Defence Force.
The Australian Human Rights Commission (AHRC) has the power to grant an exemption to any person from the operation of any part of the Sex Discrimination Act. These exemptions may be granted for up to five years and can be reviewed by the Administrative Appeals Tribunal if an application is made (s 44 Sex Discrimination Act).
State governments and authorities are not prevented by the Sex Discrimination Act from discriminating in employment. However, the Queensland Government and its authorities are covered by state law such as the Anti-discrimination Act 1991 (Qld). Commonwealth and territory employees are covered by s 9 of the Sex Discrimination Act.
Apart from this ultimate power of reference to a court, the Sex Discrimination Act creates a number of offences that seek to ensure compliance with the legislation. The following are the more significant offences under the Sex Discrimination Act:
- publication of advertisements or notices indicating an intention to do something that is unlawful (e.g. an advertisement for a position limited to one sex only) (s 86)
- failure to provide actuarial or statistical data (s 87)
- disclosure of confidential information about a complaint prior to inquiry, withdrawal or termination of the complaint (s 92)
- victimisation of a person making a complaint of sexual harassment (s 94)
- obstruction or hinderance of an investigation (s 95).