The Sex Discrimination Act is currently in the news following the outcome of a high-profile court case reaffirming transgender rights in Australia.
The controversy concerns the meaning of “sex” in the act and its interaction with gender identity discrimination. The Coalition wants to amend the act to include a definition of biological sex, arguing “the law does not properly protect single sex spaces for women and girls”.
But what’s missing from the conversation is how the Sex Discrimination Act works and what it was designed to achieve.
What is the Sex Discrimination Act?
The Sex Discrimination Act is a federal law. It originally became law in 1984 and protected people from sex, pregnancy and marital status discrimination.
Currently, the act protects people from discrimination based on a wider range of attributes, called “protected attributes”. These include their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy status, breastfeeding or family responsibilities.
Discrimination is prohibited in employment, the provision of goods, services and facilities, education, accommodation, land, clubs, and federal programs and laws. A purpose of the act is to eliminate “so far as possible” discrimination based on the protected attributes.
Unlawful discrimination is either “direct” or “indirect”. Direct discrimination occurs when a person with an attribute is treated less favourably than a person without that attribute in the same situation. Classic examples of direct sex discrimination are where a woman is paid less than a man while completing the same work.
Indirect discrimination addresses more subtle forms of inequality. For example, a rule may seem to treat everyone equally, but, in practice, it disadvantages one group that shares an attribute.
Let’s say a firm requires all partners to work a 60-hour week. People with family responsibilities could be less able to comply with this rule.
Rules that cause disadvantage based on an attribute can be legal if they are reasonable, but direct discrimination cannot be defended on the basis it is reasonable.
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What are the exceptions?
There are limits to protection against discrimination under the Sex Discrimination Act.
The act contains many exceptions allowing conduct that would otherwise be discriminatory. For example, there are general exceptions for services where they can only be provided to members of one sex.
Exceptions also apply to staff and students in religious educational institutions.
There are exceptions for participation in sports where strength, stamina or physique is relevant.
It is also not discrimination to provide affirmative action or equal opportunity measures. But these exceptions, called “special measures”, cannot discriminate on the basis of other protected attributes.
Very few court tests
Despite the act being in force for more than 40 years, it has received little attention from higher courts.
The recent decision of Giggle For Girls v Tickle was the first case of gender identity discrimination heard by the Federal Court. The full bench found a transgender woman had been directly discriminated against on the basis of gender by being refused access to a women-only social media app.
The High Court of Australia has considered only three sex discrimination claims in its history. None of these was made under the Sex Discrimination Act. Two of those were decided in the 1980s, and one was considered in 2006. That means the High Court has not heard a sex discrimination claim in 20 years.
It has never considered the act and its prohibitions on discrimination. This means there is little higher court authority on how its provisions operate.
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The 2013 changes
Until 2013, federal law did not protect people from discrimination because of gender identity, sexual orientation or intersex status. While there were protections in state and territory acts for these attributes, they varied greatly. This led to inconsistent protection from discrimination across Australia.
In 2013, the federal Sex Discrimination Act was amended to include the attributes of gender identity, sexual orientation, intersex status and relationship status.
This made it unlawful to discriminate, directly or indirectly, against people based on their sexual orientation, gender identity, intersex status or relationship status. This protection from discrimination applies in all areas of life captured by the act.
The amendments created definitions of these newly protected attributes. The definition of gender identity was designed to achieve “maximum protection” for gender-diverse people.
It was also designed to recognise that “gender” and “sex” are distinct concepts. The definition indicates both are changeable.
Further, the definition of “intersex status” was designed to recognise that sex is not binary.
The definitions of “man” and “woman” were also removed and are instead understood by their “normal meaning”. This means the words aren’t narrowly interpreted to exclude transgender people. Women and men (of all ages) would also continue to be protected from discrimination based on their sex.
In 2013, the amendments made to the Sex Discrimination Act were not particularly controversial. As then-Attorney-General Mark Dreyfus noted in respect of a Senate Committee Report on human rights and discrimination legislation:
all parties agree on one issue – the pressing need for protection from discrimination for the lesbian, gay, bisexual, transgender and intersex community at the federal level.
It was recognised that there was substantial evidence of discrimination due to sexual orientation, gender identity and intersex status. This discrimination was harmful and created barriers in how people could live their lives.
While controversies have sprung up since, the 2013 changes to the Sex Discrimination Act remain a milestone. For many Australians, the changes marked the first time that federal law protected their right to live free from discrimination.
