Are you experiencing discrimination on the basis of being trans and gender diverse?

What is discrimination?

Generally speaking, discrimination means treating (or proposing to treat) someone unfairly or less favourably than others because of one or more of their personal characteristics.

Discrimination is only unlawful when it happens in certain areas of public life, such as in schools, shops and workplaces. This doesn’t mean discrimination experienced in private settings isn’t just as hurtful or dangerous.

There are two recognised forms of discrimination under the law in Australia:

• Direct discrimination: this occurs when you are treated less favourably than another person would be treated in the same or similar circumstances.
• Indirect discrimination: this occurs when there is a rule, requirement or practice that is the same for everyone but disadvantages a certain person or group of people.

What is transphobia?

Transphobia is a term that describes a range of irrational fears, negative attitudes and unreasonable feelings that a person may feel towards another person or a group of people due to their transgender, gender questioning or gender diverse status, identity and/or expression.

Unfortunately, this phobia can lead people to discriminate against, stereotype, ostracise, harass or even act with violence towards others, simply because they are different to them. This is wrong.

All people deserve to be treated equally and with respect. All people have the same human rights regardless of their sexual orientation or gender identity.

What can you do about gender discrimination or transphobia?

There are different things you can do, depending on the type of discrimination and where it occurs.

Talk to someone you trust

If you are being discriminated against in your or someone else’s home, or in another private setting, talk to someone you trust (like a family member, friend, teacher or counsellor) about how you can get help to manage the situation and make it stop.

Talk to the organisation or person who has discriminated against you

Sometimes when you ask someone to stop treating you badly, they will stop. You might want to do this with the help and support of a parent or another trusted person in your life.

Take action under the law

You can take action by making a complaint to one of the national or state/territory anti-discrimination bodies.

How to take legal action against gender discrimination on a federal level

Under the Sex Discrimination Act 1984 (Cth), discrimination on the basis of a person’s sexual orientation, gender identity and intersex status is against the law.

If you want to take action under federal law, you can make a complaint to the Australian Human Rights Commission (AHRC). If the discrimination occurred at work, you can also make a complaint to the Fair Work Commission in some cases.

Where does the discrimination need to have occurred?

You are protected by law from discrimination you may experience due to your gender identity across every state and territory in Australia in many areas of public life, including:

• Workplaces
• Schools and other educational institutions
• Accommodation
• Places where you access or use services

Making a complaint to the AHRC

You will need to submit a complaint in writing to the AHRC, or get help from a lawyer or advocate to make the written complaint for you. You should submit your complaint within six months after the events that your complaint is about happened, or 12 months if the events relate to discrimination in employment. If you do not submit your complaint within these timeframes then you will be asked to provide reasons for the delay. The President of the AHRC will consider these reasons and make a decision about whether or not to investigate your complaint.  

What happens next?

• The AHRC will look into the complaint and try and resolve the issue by conciliation. Conciliation involves a meeting where you and the person you believe has discriminated against you try to resolve the complaint with the help of a third party.
• If the complaint is not resolved by conciliation, the President of the AHRC will make a final decision.
• If the President decides that the complaint should be terminated, then an application to the Federal Circuit Court of the Federal Court of Australia can be made within 60 days of the date of termination.

Making a complaint to the Fair Work Commission or a Federal Court

If you believe you have experienced discrimination in relation to your employment, or in the process of seeking employment, it may also be possible for you to make a workplace discrimination complaint to the Fair Work Commission (if it relates to dismissal) or a Federal Court (in other circumstances) under the Fair Work Act 2009 (Cth) (FW Act). You could also seek advice from the Fair Work Ombudsman.

If your claim relates to dismissal, you must lodge it with the Fair Work Commission within 21 days of your dismissal taking effect.  If your claim relates to your employment, but does not involve dismissal, it can be made to the Fair Work Commission or a Federal Court within six years of the incident of discrimination.  

What happens next?

The process is different depending on where you make a claim. If you lodge a dismissal claim with the Fair Work Commission it will hold a conciliation conference to try to settle the claim.  If it does not settle, you will have 14 days to lodge your claim in a Federal Court.  

A more formal process applies to claims lodged in a Federal Court, although this may also include Court ordered mediation at some point.   

Making a claim in the Fair Work Commission or a Federal Court about a contravention of the unlawful discrimination provisions in the FW Act will likely require getting help from a lawyer or advocate.  You may be able to obtain free or low-cost legal advice and/or assistance from Justice Connect or a community legal centre – or assistance from the Fair Work Ombudsman. 

How to take legal action against gender discrimination at a state level

Each state and territory in Australia has equal opportunity and anti-discrimination laws. Complaints in relation to gender identity discrimination can be made to state and territory anti-discrimination agencies and commissions, which must investigate discrimination claims under these laws.

In the Northern Territory, you can make a complaint if you have been discriminated against on the basis of sex and sexuality (which covers ‘sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality’) under the Anti-Discrimination Act 1992 (NT) to the Northern Territory Anti-Discrimination Commission (ADC).

Where does the discrimination need to have occurred?

You are protected by law from discrimination you may experience due to your gender identity across the Northern Territory in:

• Workplaces
• Schools and other educational institutions
• Accommodation
• Places where you access or use services (for example, shops, clubs)

Making a complaint to the ADC

You will need to submit a complaint to the ADC, or get help from a lawyer or advocate to make the complaint for you. This should be lodged within 12 months of the incident of discrimination.

What happens next?

• The ADC will decide if the complaint is covered by the Act. If the complaint is covered by the Act, the ADC notifies the respondent, who is the person who is alleged to have engaged in discriminatory conduct
• The matter is then set down for a compulsory conciliation to see if the parties can resolve their differences with the assistance of a third party
• If conciliation does not resolve the complaint, the person can elect to continue to the complaint. If the ADC considers there is merit in the complaint going to a hearing, then it will be referred to the Northern Territory Civil and Administrative Tribunal to determine whether the discrimination occurred. 

Where to get help and more information

• Parents of Gender Diverse Children provides peer support nationally to parents and those parenting trans and gender diverse children. To access their resources or make an enquiry, visit the PGDC website.

• Information on making a complaint to the Australian Human Rights Commission.

• Information on how the Fair Work Commission can help resolve disputes in the workplace.

• OUT in NT Community Connection is a website that aims to connect the community to information, resources and each other.

• For information on making a complaint to the Northern Territory Anti-Discrimination Commissioner, visit their website.