The Sex Discrimination Act 1984 (Cth) provides that a person discriminates against another person on the ground of the gender identity of a person if the discrimination occurs by reason of:
- the gender identity of the aggrieved person
- a characteristic that applies generally to persons who have the same gender identity as the aggrieved person, or
- a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person.[1]
This includes a person with an intersex status.[2]
The sex of a person may include the gender assigned to a post-operative transsexual.[3]
Sexual harassment has been found to constitute sex discrimination.[4] Similarly, sexual harassment may constitute adverse action against a person by reason of the person’s sex.
Whilst the dictionary meaning of ‘harass’ implies repetition, one act may be sufficient.[5]
A person sexually harasses another person if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
- the person engages in other unwelcome conduct of a sexual nature in relation to the other person;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.[6]
Conduct motivated by general assumption and stereotypes, known as ‘imputed characteristics’, can constitute conduct based on sex.[7]