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

28 August 2019

A resource 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

Download fact sheet

Fact sheet: How to deal with gender discrimination (WA) Download PDF (146 KB)

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 against the law when it happens in an area 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 Australian Fair Work Commission.

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.

What happens next?

  • The Commission 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 Australian Fair Work Commission

If you believe you have experienced discrimination at your place of employment, or in the process of seeking employment, it may also be possible for you to submit a workplace discrimination complaint to the Australian Fair Work Commission under the Fair Work Act 2009 (Cth).

What happens next?

The Fair Work Ombudsman will investigate your complaint and decide whether it is necessary to take disciplinary action against the person or organisation who is the subject of the complaint.

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 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).

Where does the discrimination need to have occurred?

You are protected by law from discrimination you may experience due to your gender identity across Western Australia in:

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

 

Making a complaint to the Board

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.

What happens next?

  • The EOC Commissioner will send an acknowledgment of receipt of your complaint within one week. Confirmation of acceptance or otherwise will 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.

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.
  • TransFolk of WA is a support service for all transgender people and their loved ones in Western Australia. Visit their website to access their resources.
  • 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.
  • For information on making a complaint to the Commissioner of Equal Opportunity in WA, visit their website.

This resource was published 28/08/2019. 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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