Are you experiencing discrimination on the basis of being trans and gender diverse?
Last updated 26 March 2021
Last updated 26 March 2021
This resource is for trans and gender diverse young people and their families in WA.
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 Western Australia 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
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.
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.
There are different things you can do, depending on the type of discrimination and where it occurs.
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.
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.
You can take action by making a complaint to one of the national or state/territory anti-discrimination bodies.
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.
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.
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:
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.
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.
If you believe you have experienced discrimination at 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.
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.
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 Western Australia, you can make a complaint if you have been discriminated against on the basis of sex, sexual orientation or gender history under the Equal Opportunity Act 1984 (WA) to the Commissioner of Equal Opportunity in WA (EOC).
You are protected by law from discrimination you may experience due to your gender identity across Western Australia in:
You will need to submit a complaint in writing to the EOC, 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. In certain circumstances, the EOC Commissioner may rule that there is a good reason or good cause to include incidents that occurred more than 12 months before the complaint is lodged.
The EOC Commissioner will send an acknowledgment of receipt of your complaint within one week. Confirmation of acceptance or otherwise may be received usually within two weeks
If the EOC Commissioner decided that the complaint or inquiry that has been made is covered by the Act, it will be allocated to a Conciliation Officer
The complainant may be required to provide more information before the matter progresses further
The Officer will hold a free conciliation conference. 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.
The Freedom Centre provides safe social spaces, peer support, information and referral for young gay, lesbian, bisexual, trans, intersex, queer and questioning young people under the age of 26.
TransFolk of WA is a support service for all transgender people and their loved ones in Western Australia. Visit TransFolk of WA’s website to access their resources.
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.
Information on how the Fair Work Ombudsman can assist you.
Information on making a complaint to the Commissioner of Equal Opportunity in WA, visit their website.
Information on how the Employment Law Centre of WA may be able to assist you.
This resource was last updated on 26 March 2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.