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

26 March 2021

A resource for trans and gender diverse young people and their families in Tasmania

This fact sheet answers some common questions trans and gender diverse young people, and their families, have about discrimination and their rights.

If you are experiencing discrimination because of your gender, you can get help. By reading this resource you will get a better understanding of the different approaches you can take in Tasmania to making a complaint or taking legal action.

This fact sheet includes:

  • What is gender discrimination
  • What is transphobia
  • How to take federal legal action against gender discrimination
  • How to take state-level legal action against gender discrimination

  Not in Tasmania?

This resource explains your rights in Tasmania. We also have resources for:

VIC | NSW | QLD | SA | ACT | NT | TAS | WA

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.

  Think carefully before choosing your course of action

You can only make a complaint at a federal OR state level – not both. You will need to decide on one approach or the other. It might help to get advice from a lawyer about what is most appropriate in your circumstances. See how you can get help below.

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 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 Tasmania, you can make a complaint if you have been discriminated against on the basis of gender identity under the Anti-Discrimination Act 1998 (Tas) (Act) to the Anti-Discrimination Commissioner through Equal Opportunity Tasmania (EOT).

Where does the discrimination need to have occurred?

You are protected by law from discrimination you may experience due to your gender identity across Tasmania in areas of public activity including:

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

 

Making a complaint to Anti-Discrimination Commissioner

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

What happens next?

  • The Anti-Discrimination Commissioner determines whether the complaint can be dealt with under the Act (‘accepted’) or is outside the scope of the Act (‘rejected’).
  • If the complaint is rejected, the Anti-Discrimination Commissioner writes to the person who made the complaint to outline the decision and the reasons for that decision. They will also be informed about their right to have that decision reviewed by the Anti-Discrimination Tribunal and how to ask for a review
  • If the complaint is accepted, the Anti-Discrimination Commissioner must commence an investigation into the complaint. They will have six months to complete the investigation. The process usually involves:  
    • The Anti-Discrimination Commissioner sending a copy and a summary of the complaint to you and the person or organisation who the complaint is about
    • The parties will usually be asked to attend a conciliation conference. This 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 an agreement is reached at the conference, the complaint will end with the agreement
    • If an agreement is not reached at the conference, the person or organisation who your complaint is about will need to provide a response to your complaint.
    • Once a response is submitted, you will be asked to provide a reply.  
    • After receiving your reply, the EOC will make a decision about whether any further investigation of your complaint is needed such as collecting witness statements from people who might have relevant evidence. 
    • The Anti-Discrimination Commissioner will then make a decision about whether the complaint should be dismissed, proceed to conciliation or referred to the Anti-Discrimination Tribunal for it to hold an inquiry. If a further conciliation happens but the complaint remains unresolved then the Anti-Discrimination Commissioner must send the complaint to the Anti-Discrimination Tribunal.  

Where to get help and more information

This resource was published 26/03/2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.

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