Gender identity, lawful sexual activity, sexual orientation discrimination

In Victoria it is against the law to discriminate against you because of your sexual orientation, gender identity or lawful sexual activity, or what people assume these to be.

Gender identity

Gender identity is where people of one sex identify as a member of the other sex, or where people of indeterminate sex identify as a member of a particular sex. People can do this by living, or seeking to live, as a member of a particular sex, or assuming characteristics of a particular sex. This could be through the way they dress, a name change or medication intervention, such as hormone therapy or surgery.

Example of gender identity discrimination

For example, 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 politely asked people to address her appropriately but most make no effort to use suitable pronouns.

Discrimination against transgender people in employment

Transgender people experience significant levels of discrimination, not just in employment but in all areas of life. In employment, discrimination can include not being recognised as their preferred gender, being forced to disclose private information and missing out on employment opportunities. The Commission has developed a Guideline - Transgender people at work > complying with the Equal Opportunity 2010 in employment - which outlines legal obligations for employers regarding discrimination based on gender identity and information about gender identity issues more broadly. There are also supplementary materials, including information on developing a transition plan and policy template available to download.

Lawful sexual activity

Victoria’s laws protect us all from discrimination because of lawful sexual activity. That means who you have sex with should have no bearing on whether you get a job, a promotion, accommodation, a loan or a place on a sporting team.

Lawful sexual activity includes taking part in, or choosing not to take part in, any form of sexual activity that is legal in Victoria, including legal prostitution. Sexual activities that are illegal are not protected, regardless of a person’s gender or sexual orientation.

Example of lawful sexual activity discrimination 

For example, Jeanette works in a competitive scientific field. When her employer discovers she is in a relationship with a staff member from a rival company he sacks her because he is afraid she is “giving away trade secrets to the competition".

Sexual orientation

Whether you are homosexual, lesbian, bisexual or heterosexual you have the same rights under the Equal Opportunity Act 2010 (the Act). That means it is against the law for someone to discriminate against you because of your sexual orientation.

Example of sexual orientation discrimination

For example, Maxine contacts the local sports centre to join the weekly basketball tournament and is put in touch with a team needing players. At her second game with the team Maxine’s girlfriend comes along to cheer her on. Afterwards, the team captain tells Maxine that she doesn’t want a lesbian on the team as it might upset some of the other team members.

Expunged homosexual conviction

On 1 September 2015, an attribute was added to section 6 of the Act to prohibit discrimination on the basis of an expunged homosexual conviction. It is added as section 6(pa) of the Equal Opportunity Act.

The purpose of expunging historical homosexual records is to remove the stigma of a criminal record and the practical impediments created by a criminal record in relation to travel, employment, volunteering, appointments, licences and permissions.

Example of expunged homosexual conviction discrimination

For example, Frank applies for a position with a construction company but doesn’t get the job. When he calls the company’s human resources manager to ask why he wasn’t chosen, she tells Frank: “We heard that your criminal record has been altered which you failed to tell us about. We don’t employ people with criminal records.”

Where can discrimination occur?

Discrimination is against the law when it occurs in an area of public life such as clubs, schools and shops, or in the workplace.

Find out more about general places of discrimination or learn more specifically about discrimination in employment relating to sexual orientation, gender identity or lawful sexual activity

Are there any exceptions to the law?

The Equal Opportunity Act 2010 includes some exceptions, which mean that discrimination will not be against the law in particular circumstances.

Positive steps can also be taken to help disadvantaged groups using special measures, which is not discrimination under the law.

If an exception or special measure does not apply, in some circumstances an exemption from the Act may be sought from the Victorian Civil and Administrative Tribunal (VCAT).

Religious bodies and schools can discriminate on the basis of several personal characteristics, including gender identity, lawful sexual activity and sexual orientation in circumstances where such discrimination is required to conform with religious belief or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of followers of the religion.

The Act also includes exceptions that apply to competitive sporting activities . It is not against the law to discriminate against a person because of their gender identity when it relates to competitive standards, that is, a competitive sporting activity in which the strength, stamina or physique of the competitors is relevant.

Make a complaint to the Commission

If you think you have been discriminated againstsexually harassedvictimised or vilified, contact us and talk about your concerns. Our dispute resolution service is free and confidential. We can send you information about the complaint process and if we can’t help you we will try to refer you to someone who can.

To make a complaint:

Find out more about making a complaint.