19 August 2013
Margaret Chan, Associate
With all the recent changes to bullying complaints, superannuation and parental leave, one could almost be forgiven for not noticing the passage through Parliament of the Sex Discrimination Amendment (Sexual orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) (the “SD Amendment Bill”) and its amendments to the Sex Discrimination Act 1984 (Cth) (the “SD Act”).
Introduced in March 2013, the SD Amendment Bill stemmed from recommendations and proposed reforms by the Senate Legal and Constitutional Affairs Committee’s inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (Cth) (the “HRAD Bill”) – which was announced last year and subsequently put on hold in March this year. HRAD followed a 2010 report by the Australian Human Rights Commission on discrimination experienced by members of the lesbian, gay, bisexual, transgender and intersex community and recommendations by the Senate Legal and Constitutional Affairs Committee in 2008 re-electing the need to reform the SD Act.
The changes under the SD Amendment Bill have commenced as of 1 August 2013 so employers need to be aware of their new obligations and ensure that workplace policies are up-to-date and compliant with the changes introduced by the amendments.
Snapshot of the Changes
Discrimination on the grounds of sexual orientation, gender identity and intersex status are now prohibited under the SD Act just as discrimination on these grounds are prohibited in employment, education, accommodation and the provision of goods and services.1
Prohibition of discrimination on the ground of ‘marital status’ will be extended to ‘marital or relationship status’ thus offering protection to same-sex de facto couples.
Introduction of new exemptions, meaning that prohibitions on discrimination will not:
- apply to anything done in compliance with the Marriage Act 1961 (Cth) or other prescribed law; or
- be contravened merely because a request for information or record-keeping does not provide for a person to be identified as being neither male nor female (however, this may be subject to reconsideration in the future).
The three new grounds of sexual orientation, gender identity and intersex status will be introduced by the insertion of sections 5A to 5C into the SD Act. These sections will set out the tests for direct and indirect discrimination, which are similar to the current tests for other grounds of discrimination.
Direct discrimination will usually involve discrimination on the basis of:
- the person’s sexual orientation/ gender identity/intersex status;
- characteristics that relate to or are associated with persons who have the same sexual orientation/ gender identity/intersex status as the aggrieved person; or
- characteristics generally imputed to persons who have the same sexual orientation/gender identity/intersex status as the aggrieved person.
Indirect discrimination will usually involve the imposition of, or proposal to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation/gender identity/intersex status as the aggrieved person. However, indirect discrimination on the new grounds will still remain subject to the reasonableness test currently imposed by section 7B as well as the special measures exception found in section 7D.
Aside from the introduction of these new grounds, a number of other definitional and semantic changes have been made to broaden protections offered by the SD Act to a more diverse groups of individuals– such as the broad de nition of gender identity2 and the amendment of the term “opposite sex” to “different sex” in the definition of “sex discrimination” under section 5(1) – in recognition that a person may not be, or may not identify as strictly male or female.
It is also worth noting that going forward, the terms ‘man’ and ‘woman’ as they appear in the SD Act will adopt their ordinary meaning and their current SD Act definitions will be repealed. Again, this subtle change has taken place so as to ensure that transgender individuals are not excluded from the protections offered by the SD Act on the basis of other attributes. For instance, it would now also be discriminatory (and indeed, unlawful) to ask a transgender individual who identifies as female whether she intends to become pregnant in connection with determining whether to offer employment.3
The New Grounds Defined…
Gender Identity – the gender-related identity, appearance, or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.
Intersex Status – the status of having physical, hormonal or genetic features that are:
- neither wholly female nor wholly male;
- a combination of female and male; or
- neither male nor female.
Sexual orientation – a person’s orientation towards persons of the same sex, persons of a different sex, or persons of the same sex and persons of a different sex.
Gender Equality Reforms
In a similar vein, the changes introduced by the Workplace Gender Equality Act 2012 (Cth) (the “WGE Act”) are now in full swing and many employers will have completed and submitted their first public report under the WGE Act in May.
As a reminder to employers, the WGE Act also requires employers to inform employees, shareholders (as soon as possible) and employee organisations (within 7 days) that the public report has been lodged. Employers are also obliged to make the report available to these parties and to inform them that comments on the report will be received by it or the Workplace Gender Equality Agency (the “Agency”).
While reporting requirements were simplified in the 2012/13 reporting year and only involved the provision of a workplace profile, reporting requirements from 2013/14 (the current reporting year) are set to increase slightly and employers will be required to report against a set of six Gender Equality Indicators (“GEIs”) prescribed by the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument (Cth) (the “Instrument”). The GEIs may change from year to year and will be set out in the Instrument prior to the commencement of the reporting year (e.g. GEIs for the 2013/14 reporting year are set out prior to 1 April 2013).
The six GEIs for 2013/14 are:
- the gender composition of the workforce;
- the gender composition of an employer’s governing bodies (e.g. the Board);
- equal remuneration between women and men;
- availability and utility of employment terms, conditions and practices relating to exible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
- consultation with employees on issues concerning gender equality in the workplace; and
- sex-based harassment and discrimination.
From the 2014/15 reporting year onwards, minimum standards will also begin to apply to employers in relation to workplace gender outcomes. The standards will be set by the Minister for the Status of Women following consultation with the Agency. Where employers fail to meet minimum standards and are not able to improve against it by the end of two further reporting periods, the employer will be deemed non-compliant.
Possible Upcoming Changes
We may also see further changes in the sex discrimination arena with respect to pregnancy in the not too distant future, with the Australian Human Rights Commission announcing on 22 June 2013 that Sex Discrimination Commissioner, Elizabeth Broderick, would be commencing an 11 month research project into the “prevalence of experiences of discrimination relating to pregnancy at work and return to work after parental leave”. It is expected that data will be collected from individuals in a range of family circumstances – including single parents and separating households.4
This research is being conducted following data released by the Australian Bureau of Statistics last year which indicated that some 67,000 women had experienced some form of discrimination following becoming pregnant, in addition to significant anecdotal evidence of demotions, dismissals or having their roles unfavourably ‘restructured’ while they were on or returning from parental leave.5
Given the number of changes in this area, it is important for employers to be reviewing their Discrimination and/ or Equal Opportunity policies to ensure that they are up-to-date and capture the changes to the SD Act, especially the introduction of the new and amended grounds of discrimination.
It will also be important for employers to examine their practices around workplace gender equality and consider how they may seek to improve these going forward.
For more advice around any of the topics covered in this article or if you are unsure whether your organisation is compliant, please contact PCS by emailing [email protected] or calling (02) 8094 3100.
- Most of the current exemptions for voluntary bodies, religious organisations and competitive sports will apply to the new protected grounds – however religious organisations will not be exempt from unlawful discrimination on the ground of intersex status.
- Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth), 12.
- Ibid, 13.
- Australian Human Rights Commission, Terms of Reference (22 June 2013), Australian Human Rights Commission <https://www.humanrights.gov.au/ pregnancy-discrimination> accessed 24 June 2013.
- Department of Attorney-General, ‘Inquiry Into Parental Leave Discrimination: Fairer Workplace Practices to Bene t Families and the Economy’ (Press Release, 22 June 2013), 1.