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Contents (1977 - 48)
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Anti-Discrimination Act 1977 No 48
Current version for 8 December 2016 to date (accessed 20 September 2017 at 10:03)
Part 3A
Part 3A Discrimination on transgender grounds
Division 1 General
38A   Interpretation
A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a)  who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or
(b)  who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c)  who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
38B   What constitutes discrimination on transgender grounds
(1)  A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if the perpetrator:
(a)  on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or
(b)  requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or
(c)  treats the aggrieved person, being a recognised transgender person, as being of the person’s former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person’s former sex comply or are able to comply, being a requirement or condition which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)  For the purposes of subsection (1) (a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.
Division 2 Discrimination in work
38C   Discrimination against applicants and employees
(1)  It is unlawful for an employer to discriminate against a person on transgender grounds:
(a)  in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b)  in determining who should be offered employment, or
(c)  in the terms on which employment is offered.
(2)  It is unlawful for an employer to discriminate against an employee on transgender grounds:
(a)  in the terms or conditions of employment that are afforded to the employee, or
(b)  by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c)  by dismissing the employee or subjecting the employee to any other detriment.
(3)  Subsections (1) and (2) do not apply to employment:
(a)  for the purposes of a private household, or
(b)  if the number of persons employed by the employer (disregarding any persons employed within the employer’s private household) does not exceed 5, or
(c)  by a private educational authority.
(4)  For the purposes of subsection (3) (b), a corporation is regarded as the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
38D   Discrimination against commission agents
(1)  It is unlawful for a principal to discriminate against a person on transgender grounds:
(a)  in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent, or
(b)  in determining who should be engaged as a commission agent, or
(c)  in the terms on which the principal engages the person as a commission agent.
(2)  It is unlawful for a principal to discriminate against a commission agent on transgender grounds:
(a)  in the terms or conditions that are afforded to the commission agent, or
(b)  by denying the commission agent access, or limiting the commission agent’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or
(c)  by terminating the commission agent’s engagement or subjecting the commission agent to any other detriment.
38E   Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on transgender grounds:
(a)  in the terms on which the contract worker is allowed to work, or
(b)  by not allowing the contract worker to work or continue to work, or
(c)  by denying the contract worker access, or limiting the contract worker’s access, to any benefit associated with the work performed by the contract worker, or
(d)  by subjecting the contract worker to any other detriment.
38F   Partnerships
(1)  It is unlawful for a firm consisting of 6 or more partners, or for any one or more of 6 or more persons proposing to form themselves into a partnership, to discriminate against a person on transgender grounds:
(a)  in the arrangements made for the purpose of determining who should be offered a position as partner in the firm, or
(b)  in determining who should be offered a position as partner in the firm, or
(c)  in the terms on which the person is offered a position as partner in the firm.
(2)  It is unlawful for a firm consisting of 6 or more partners to discriminate against a partner on transgender grounds:
(a)  by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm, or
(b)  by expelling the partner from the firm, or
(c)  by subjecting the partner to any other detriment.
38G   Discrimination by local government councillors
It is unlawful for any member or members of a council of a local government area when acting (whether alone or together) in the course of the member’s or members’ official functions to discriminate against another member of the council on transgender grounds.
38H   Industrial organisations
(1)  It is unlawful for an industrial organisation to discriminate on transgender grounds against a person who is not a member of the industrial organisation:
(a)  by refusing or failing to accept the person’s application for membership, or
(b)  in the terms on which it is prepared to admit the person to membership.
(2)  It is unlawful for an industrial organisation to discriminate against a member of the organisation on transgender grounds:
(a)  by denying the member access, or limiting the member’s access, to any benefit provided by the organisation, or
(b)  by depriving the member of membership or varying the terms of his or her membership, or
(c)  by subjecting the member to any other detriment.
38I   Qualifying bodies
It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on transgender grounds:
(a)  by refusing or failing to confer, renew or extend the authorisation or qualification, or
(b)  in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or
(c)  by withdrawing the authorisation or qualification or varying the terms or conditions on which it is held.
38J   Employment agencies
It is unlawful for an employment agency to discriminate against a person on transgender grounds:
(a)  by refusing to provide the person with any of its services, or
(b)  in the terms on which it offers to provide the person with any of its services, or
(c)  in the manner in which it provides the person with any of its services.
Division 3 Discrimination in other areas
38K   Education
(1)  It is unlawful for an educational authority to discriminate against a person on transgender grounds:
(a)  by refusing or failing to accept the person’s application for admission as a student, or
(b)  in the terms on which it is prepared to admit the person as a student.
(2)  It is unlawful for an educational authority to discriminate against a student on transgender grounds:
(a)  by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
(b)  by expelling the student or subjecting the student to any other detriment.
(3)  Nothing in this section applies to or in respect of a private educational authority.
38L   (Repealed)
38M   Provision of goods and services
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:
(a)  by refusing to provide the person with those goods or services, or
(b)  in the terms on which the other person is provided with those goods or services.
38N   Accommodation
(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:
(a)  by refusing the person’s application for accommodation, or
(b)  in the terms on which he or she offers the person accommodation, or
(c)  by deferring the person’s application for accommodation or giving the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person or subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.
38O   Registered clubs
(1)  It is unlawful for a registered club to discriminate on transgender grounds against a person who is not a member of the registered club:
(a)  by refusing or failing to accept the person’s application for membership of the club, or
(b)  in the terms on which it is prepared to admit the person to membership of the club.
(2)  It is unlawful for a registered club to discriminate on transgender grounds against a member of the registered club:
(a)  by denying the member access, or limiting the members’ access, to any benefit provided by the club, or
(b)  by depriving the member of membership or varying the terms of his or her membership, or
(c)  by subjecting the member to any other detriment.
Division 4 Exceptions to Part 3A
38P   Sport
(1)  Nothing in this Part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies.
(2)  Subsection (1) does not apply:
(a)  to the coaching of persons engaged in any sporting activity, or
(b)  to the administration of any sporting activity, or
(c)  to any sporting activity prescribed by the regulations for the purposes of this section.
38Q   Superannuation
A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.
Division 5 Transgender vilification
38R   Definition
In this Division:
public act includes:
(a)  any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, or
(b)  any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, or
(c)  the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of:
(i)  a person on the ground that the person is a transgender person, or
(ii)  a group of persons on the ground that the members of the group are transgender persons.
38S   Transgender vilification unlawful
(1)  It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of:
(a)  a person on the ground that the person is a transgender person, or
(b)  a group of persons on the ground that the members of the group are transgender persons.
(2)  Nothing in this section renders unlawful:
(a)  a fair report of a public act referred to in subsection (1), or
(b)  a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c)  a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
38T   Offence of serious transgender vilification
(1)  A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons, by means which include:
(a)  threatening physical harm towards, or towards any property of, the person or group of persons, or
(b)  inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.
Maximum penalty:
In the case of an individual—10 penalty units or imprisonment for 6 months, or both.
In the case of a corporation—100 penalty units.
(2)  A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.