Is it discrimination to provide special services to meet the needs of LGBTI people?
No. Not all forms of discrimination are against the law. The Equal Opportunity Act 2010 allows people to be treated differently in a range of circumstances where Parliament has decided that there is a good reason for this. One of these areas is where people from particular groups have special needs.
Special needs and welfare services
The Equal Opportunity Act 2010 allows for a person to establish special services, benefits or facilities that meet the special needs of people with a particular attribute (such as sex, sexual orientation or gender identity), and may limit eligibility for such services to people with the particular attribute. A person does not unlawfully discriminate against someone by establishing these special services.
The Act also allows for employment to be limited to people with a particular attribute where the employer provides services that are for the special needs of a particular group and where the services can be provided most effectively by people with that attribute.
- Example: In a 2013 matter, the Victorian Civil and Administrative Tribunal considered an application from the Victorian AIDS Council for a temporary exemption from the Equal Opportunity Act 2010. The Council wanted to advertise for and employ only gay men in the roles of peer counsellor, registered nurse and receptionist. The Tribunal found that a temporary exemption was not necessary because the conduct was already allowed under the section 28 exception to support welfare services.
The Equal Opportunity Act 2010 also allows people and organisations to take positive steps to help disadvantaged groups by using special measures. Special measures are not unlawful discrimination and do not require an exemption from the operation of the Act. An example of a special measure is a person establishing a counselling service to provide counselling for gay men and lesbians who are victims of family violence, and whose needs are not met by general family violence counselling services.
Find out more on our exceptions, exemptions and special measures webpage.
Can I make a complaint if someone discriminated against me because I'm intersex?
Often the answer will be yes. While 'intersex' is not a protected attribute under the Victorian Equal Opportunity Act 2010, in many circumstances people will be able to make a complaint under another attribute such as:
- sex. This term is not defined in the Equal Opportunity Act 2010, but has been found by other courts to include male, female and intersex status – this has not been tested under the Equal Opportunity Act 2010
- physical features
- gender identity, where a person is of indeterminate sex and identifies as a member of a particular sex, for example, by dressing as a member of a particular sex
For example, if an intersex person is a woman and has some male physical characteristics and is bullied about these at work, the person could bring a complaint about physical features discrimination in employment.
We acknowledge that the application of these terms can be inappropriate and may offend some people or not fit with their experience. The Commission has a role in letting people know about their rights and responsibilities to the extent and in the way that the law provides. We want to ensure that we make clear the legal rights and responsibilities that are there for people under the Victorian Equal Opportunity Act.
Intersex is a protected attribute under federal anti-discrimination law. You can find out more about your rights from the Australian Human Rights Commission.
Do discrimination protections apply to HIV/Hepatitis status?
Yes, sexually transmitted diseases fall under the broad definition of 'disability' under the Equal Opportunity Act 2010. There are some limitations for health and safety reasons.
The Commission recognises that this is a question for everyone in the community. But we also want to recognise that forms of discrimination against people because of their lawful sexual activity or sexual orientation have at times been closely connected with assumptions about sexually transmitted diseases.
Discrimination because you, or a person you are associated with, has a sexually transmitted disease can be a form of disability discrimination under the Equal Opportunity Act 2010.
Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law. This includes bullying someone because of a protected characteristic. The Act applies in specific areas of public life including employment, education, goods and services, accommodation and sport.
Disability includes having a condition like HIV or Hepatitis C.
The law protects people who have had a disability in the past and those who, because of an existing medical condition, may have a disability in the future.
There is an exception in the Equal Opportunity Act 2010 that allows discrimination on the basis of disability where if the discrimination is reasonably necessary to protect the health or safety of a person. This will apply in some circumstances in relation to protections to prevent the transmission of disease, but the measures must be reasonable necessary to protect health or safety. An example below considers the operation of this exception in sport.
- Example 1 – Discrimination in sport: In Hall v Victorian Amateur Football Association  VICCAT 333; (1999) EOC 92-997, Mr Hall was excluded by the Victorian Amateur Football Association (VAFA) from participating in amateur football because he was HIV positive. VAFA said that the exclusion of Mr Hall was 'reasonably necessary' in the circumstances and was permitted under section 80(1) of the Equal Opportunity Act 1995 (the predecessor to section 86(1) Equal Opportunity Act 2010). In considering the arguments put forward by VAFA, the Tribunal noted that players and officials who Mr Hall may come into contact with during the game were at risk of infection. While this risk was thought to be low, the Tribunal held that the banning of Mr Hall was not unlawful in light of that risk. However, the Tribunal went on to consider VAFA's Infectious Diseases Policy, which was very detailed in its methods of dealing with people and property contaminated by blood and containing hygiene in team areas. The Tribunal said that VAFA had not rigorously and consistently applied this policy, but if it had done so, the risk of infections such as HIV would be reduced. Most notably, the Tribunal further found that because application of the Policy would give increased protection to the class of players and officials at risk, rather than simply banning the applicant (which still left open the risk of infection from others), banning Mr Hall was not 'reasonably necessary'. Proper application of the Policy was a non-discriminatory means by which VAFA could reduce the identified risk to health and safety without banning Mr Hall. Mr Hall's claim of discrimination was therefore upheld.
- Example 2 – Discrimination in accommodation in prison: In NC, AG, JC, SM, Matthews & Matthews as personal representatives of the Estate of Matthews v Queensland Corrective Services Commission (1998) EOC 92-940, the Queensland Anti-Discrimination Tribunal (QADT) considered complaints on behalf of five prisoners who claimed the respondent had discriminated against them in accommodation on the basis of their HIV positive status. The allegations of discrimination included being housed in a medical segregation unit, not being given the option to work in the kitchen at the prison, and for a time not being permitted to attend the oval at the same time as the mainstream protection prisoners. Applying Hoddy v. Executive Director, Department of Corrective Services (1998) EOC 92-940, QADT noted that it is open to a prisoner to complain of discrimination in the provision of services or facilities, accommodation and work. QADT found that the treatment of the complainants in the correctional centres was less favourable than that of other prisoners who were not HIV positive, and accordingly the respondent had been in breach of the Anti-Discrimination Act 1991 (Qld).