Lesbian, gay, bisexual, trans and intersex rights

Equal

We know that peole in the lesbian, gay, bisexual, trans and intersex (LGBTI) community continue to face discrimination in many areas of life, despite decades of equal opportunity laws in Victoria. This is why the Commission works to raise awareness of the issues central to the LGBTI community. The Commission:

  • works with rights holders to have a targeted impact
  • works with duty holders to have a systemic impact
  • leads the community conversation to help everyone take action and support equality.

What are my rights?

The Equal Opportunity Act 2010 makes it against the law to discriminate against a person on the basis of their sex, sexual orientation and gender identity. It is also against the law to discriminate against someone because of their lawful sexual activity and physical features. For more information about the law see:

  • Discrimination – Gender identity, lawful sexual activity, sexual orientation discrimination
  • The workplace – Gender identity, lawful sexual activity, sexual orientation discrimination

Sexual harassment is also against the law under the Equal Opportunity Act.

Making a complaint about discrimination

If you feel you have been discriminated against, sexually harassed or victimised, you or someone one your behalf can make a complaint to the Commission.

We will help resolve your complaint through our free, fair, timely dispute resolution service.You can also make an application to the Victorian Civil and Administrative Tribunal (VCAT) to have a Tribunal Member decide whether there has been discrimination, sexual harassment or victimisation.

Examples of matters resolved at the Commission through conciliation 

Sexual orientation in goods and services

While ordering food from a fast food outlet, a staff member referred to the complainant using a homophobic term of abuse. The staff member continued to refer to the customer by this term out loud and wrote the homophobic term on his meal.

When contacted about the complaint, the respondent agreed to attend a conciliation conference. At conciliation, the complaint was resolved, without admission of liability, with an agreement to pay the complainant $1000 compensation, a $1000 donation to a charity and run equal opportunity training for staff.

Sexual orientation in employment

The complainant was employed as a contractor with a food manufacturer. Co-workers would make derogatory comments towards him when he revealed his sexual orientation, such as calling him homophobic names. The hostility towards him continued, which resulted in a co-worker punching him. He complained to management about the assault and conduct of other staff towards him and his contract was terminated.

When contacted about the complaint, the respondent agreed to attend a conciliation conference. At conciliation, the complaint was resolved, without admission of liability, with an agreement to pay the complainant $2000 compensation.

Gender identity in goods and services

The complainant alleged that she was denied refuge at a women's centre for domestic violence due to her transgender status.

When contacted about the complaint, the respondent agreed to attend a conciliation conference. At conciliation, the complaint was resolved, without admission of liability, with an agreement to pay the complainant $1000 compensation and to contact Transgender Victoria to arrange training for the women's centre employees

A note on language and terminology

The Commission respects diversity of all kinds. We acknowledge the significance of language. The use of particular words can be empowering or disempowering. We also acknowledge that the use of terminology is contested and can change over time. (Transgender Victoria has a useful list of definitions of words used in the community.)

The Commission has created this section of its website to make information about LGBTI rights issues more accessible to the community. In doing so, we also want to acknowledge that LGBTI people form a diverse group and are subject to different discrimination and human rights issues. In particular, equality issues relating to trans and intersex people can be very different to those relating to sexual orientation.

However, we are mindful that some trans and intersex people feel strongly about the benefits of affiliation with the gay, lesbian and bisexual community. For this reason, and because of its use internationally, the Commission has used the initialism 'LGBTI' which stands for lesbian, gay, bisexual, trans and intersex.

These are not all terms that appear in the Equal Opportunity Act 2010. Depending on their circumstances, people may find a range of protections from discrimination on the basis of sex, physical features, lawful sexual activity, sexual orientation, gender identity and disability.

We acknowledge that some of the terms and definitions used in the Equal Opportunity Act do not reflect the way people identify and, in the case of intersex status, do not separately protect the attribute. This is an issue for the Victorian Parliament to consider, noting more recent advances in federal anti-discrimination law.

We also acknowledge that sex, physical characteristics, sexual orientation and gender identity is only one aspect of a person's total identity. Other parts of the Commission's website will also be relevant to members of the LGBTI community. 

Frequently asked LGBTI questions

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 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 allows for a person to establish special services, benefits or facilities that meet the special needs of people with a particular characteristic (such as sex, sexual orientation or gender identity), and may limit eligibility for these services to people with the particular characteristic. Aperson 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 characteristic 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 characteristic.

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.

Special measures

The Equal Opportunity Act 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.

What are the obligations of religious organisations?

Religious organisations have obligations not to discriminate under the Equal Opportunity Act. However, there are some broad exceptions. 

Find out more about exceptions.

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 characteristic under the Victorian Equal Opportunity Act, in many circumstances people will be able to make a complaint under another characteristic 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
  • 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
  • disability.

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 characteristic 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. 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.

There is an exception in the Equal Opportunity Act that allows discrimination on the basis of disability 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 reasonably 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 [1999] 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).

Reporting homophobia and transphobia

If you don't want to pursue a complaint and remedy under the Equal Opportunity Act or what you experienced isn't covered by the Act, you can still report homophobia and transphobia and other hate conduct to us through our Anti-Hate website. You can identify yourself or remain anonymous through the Anti-Hate site.

We use this information to inform the work of the Commission and tailor it to areas of need. We also use this information to report back to the community and government about people's everyday experiences so that this can inform efforts to make our community a place where everyone is equal and safe.

The Anti-Hate site also provides practical tips on things you can do to stand up against hate when you see it.

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