Gender Identity Discrimination - hrc.act.gov.au€¦ · Gender Identity Discrimination Information...
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• Requests for informaon (when the informaon about a person will be used to disadvantage that person); or • Unlawful adversing (adversing an intenon to discriminate). For example, ‘gender identy’ discriminaon may involve not interviewing someone for a job, forcing a person who idenfies as a woman to use male designated toilets, refusing a person service in a restaurant because of the way they look, or imposing special condions that do not apply to others. Example – discriminaon in the provision of goods, services or facilies April, a transgender woman, was shopping for clothes in a bouque. 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 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”. When is discriminaon allowed? 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 suffer from 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 trans and intersex people would be an example of a special measure which is not unlawful discriminaon. The law also contains specific excepons making it lawful to discriminate in some circumstances. Examples where discriminaon on the grounds of gender identy 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 associaon; or • Appoinng members of religious orders, such as priests or ministers. There is also an excepon for discriminaon on the grounds of sex in compeve sporng acvity where the strength, stamina or physique of competors is relevant. What is vilificaon? It is also against the law to vilify a person or group of people on the grounds of ‘gender identy’. Vilificaon means to publicly incite hatred towards a person or group of people which is likely to offend, insult, humiliate or inmidate that person or group of people. Some examples might include: • Distribung pamphlets to the public ridiculing a person’s ‘gender identy’; • Wearing clothing with messages that denigrates a person’s ‘gender identy’; or • Insulng or incing hatred against people because of their ‘gender identy’ by a speech at a public rally. • Vilificaon only extends to acts done ‘in public’ and does not include acts ‘done reasonably in good faith’. Gender Identy Discriminaon What does ‘gender identy’ mean in the Act? The Discriminaon Act 1991 defines ‘gender identy’ in a parcular way, which refers to: ‘the idenficaon, on a genuine basis • by a person of one biological sex as a member of the other sex; or • by a person of indeterminate biological sex as a person of a parcular sex’ This idenficaon may be by assuming characteriscs of that sex (including style of dressing or other characteriscs), or by living, or seeking to live as a member of that sex. The definion applies to intersex people who idenfy as a parcular sex, as well as trans people. It does not require that a person has undertaken any medically assisted transion. What does discriminaon mean? Under ACT law, discriminaon means treang someone unfavourably because of a personal characterisc that is protected in the Discriminaon Act. ‘Gender identy’ is one of the personal characteriscs protected in the Act. It is against the law to discriminate against a person because of their ‘gender identy’ in many areas of public life, including: • Recruitment and employment (including ACT public and private sector, paid and unpaid work); • Access to premises (including public buildings, parks, buses, taxis and aircraſt); • Accommodaon (including public housing, and private, business or residenal rental); • Educaon; • Provision of goods, services or facilies;
Transcript of Gender Identity Discrimination - hrc.act.gov.au€¦ · Gender Identity Discrimination Information...
• Requestsforinformation(whentheinformationaboutapersonwillbeusedtodisadvantagethatperson);or
• Unlawfuladvertising(advertisinganintentiontodiscriminate).
Forexample,‘genderidentity’discriminationmayinvolvenotinterviewingsomeoneforajob,forcingapersonwhoidentifiesasawomantousemaledesignatedtoilets,refusingapersonserviceinarestaurantbecauseofthewaytheylook,orimposingspecialconditionsthatdonotapplytoothers.
Example – discrimination in the provision of goods, services or facilitiesApril, 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 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”.
When is discrimination allowed?Itisnotunlawfultotakespecialmeasurestohelpgroupsorindividualswhoaredisadvantagedorhavebeenunfairlytreatedandneedsupporttofullyenjoytheirhumanrights.
Forexample,somedisadvantagedgroupssufferfromgreatersocialandeconomicdisadvantagethanothergroupsinsocietyandmaythereforerequirespecialassistancetoenjoytheirrightstothesamelevelthatotherAustraliansenjoythoserights.
Aservicecreatedtoprovidefreelegaladviceonlytotransandintersexpeoplewouldbeanexampleofaspecialmeasurewhichisnotunlawfuldiscrimination.
Thelawalsocontainsspecificexceptionsmakingitlawfultodiscriminateinsomecircumstances.ExampleswherediscriminationonthegroundsofgenderidentityisnotunlawfulintheACTinclude:
• CarryingoutanactthatisnecessarytocomplywithaTerritorylaworcourtorder;
• Theavailabilityofmembershiportheservicesofavoluntaryassociation;or
• Appointingmembersofreligiousorders,suchaspriestsorministers.
Thereisalsoanexceptionfordiscriminationonthegroundsofsexincompetitivesportingactivitywherethestrength,staminaorphysiqueofcompetitorsisrelevant.
What is vilification?Itisalsoagainstthelawtovilifyapersonorgroupofpeopleonthegroundsof‘genderidentity’.
Vilificationmeanstopubliclyincitehatredtowardsapersonorgroupofpeoplewhichislikelytooffend,insult,humiliateorintimidatethatpersonorgroupofpeople.Someexamplesmightinclude:
• Distributingpamphletstothepublicridiculingaperson’s‘genderidentity’;
• Wearingclothingwithmessagesthatdenigratesaperson’s‘genderidentity’;or
• Insultingorincitinghatredagainstpeoplebecauseoftheir‘genderidentity’byaspeechatapublicrally.
• Vilificationonlyextendstoactsdone‘inpublic’anddoesnotincludeacts‘donereasonablyingoodfaith’.
Gender Identity Discrimination What does ‘gender identity’ mean in the Act?TheDiscrimination Act 1991defines‘genderidentity’inaparticularway,whichrefersto:
‘theidentification,onagenuinebasis
• byapersonofonebiologicalsexasamemberoftheothersex;or
• byapersonofindeterminatebiologicalsexasapersonofaparticularsex’
Thisidentificationmaybebyassumingcharacteristicsofthatsex(includingstyleofdressingorothercharacteristics),orbyliving,orseekingtoliveasamemberofthatsex.Thedefinitionappliestointersexpeoplewhoidentifyasaparticularsex,aswellastranspeople.Itdoesnotrequirethatapersonhasundertakenanymedicallyassistedtransition.
What does discrimination mean?UnderACTlaw,discriminationmeanstreatingsomeoneunfavourablybecauseofapersonalcharacteristicthatisprotectedintheDiscriminationAct.‘Genderidentity’isoneofthepersonalcharacteristicsprotectedintheAct.
Itisagainstthelawtodiscriminateagainstapersonbecauseoftheir‘genderidentity’inmanyareasofpubliclife,including:
• Recruitmentandemployment(includingACTpublicandprivatesector,paidandunpaidwork);
• Accesstopremises(includingpublicbuildings,parks,buses,taxisandaircraft);
• Accommodation(includingpublichousing,andprivate,businessorresidentialrental);
• Education;
• Provisionofgoods,servicesorfacilities;
Australian Capital Territory
Gender IdentityDiscrimination
Information for trans, intersex and gender diverse people on discrimination and your rights
Example - vilification, discrimination in the provision of goods and servicesDylan is a student at a Canberra high school who was born with ambiguous sexual characteristics, but identifies as male. Students in Dylan’s class have been teasing and bullying him about his intersex status, and have written obscene comments about him on social networking sites and in the school toilets. Although Dylan reported this abuse to his teachers the school has failed to act to stop this conduct or to remove the graffiti.The school has not provided any information or education to students or staff to help them to better understand intersex and gender diverse people.
VictimisationItisunlawfultovictimiseapersonformakingorsupportingadiscriminationcomplaint,orforreasonablyassertingtheirrightsundertheDiscriminationAct.Victimisationmeanssubjectingapersontoanydetriment,andcouldincludeawiderangeofbehavioursuchasverbalharassment,lossofjobopportunitiesorrefusalofservice.
What does the ACT Human Rights Commission do?Ifyouthinkyouhavebeendiscriminatedagainst,orifyouwouldjustliketofindoutmoreaboutyourrights,youcancontacttheHumanRightsCommissionforfurtherinformation.
TheCommissionconsidersandconciliatescomplaintsofdiscrimination,harassmentandvilification.Weareimpartialinthisprocessandwedonottakesides.Wehelpthepartiestoreacharesolution,whichmayresultinabindingwrittenagreementaboutresolvingthecomplaint.
TheCommissionalsoinformsandeducatestheACTcommunity,includingemployers,employeesandserviceproviders,abouttheirrightsandresponsibilitiesunderdiscriminationlaw.Wecanprovideyouwithinformationabouthowtomakeacomplaint,andwhereelseyoumaybeabletogoforhelp.
Contact InformationHuman Rights Commission
Level4,12MooreStreetCanberraGPOBox158CanberraACT2601
Telephone 62052222Fax 62071034TTY 62051666Email [email protected] www.hrc.act.gov.au
Updated2012
ArtworkbyCamMichael2011.
