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Gender Identity, Sex Status and Sexual Orientation In the Law: Why Wording Matters

Gender Identity, Sex Status and Sexual Orientation In the Law: Why Wording Matters

Published on May 20, 2022 by Jessica MareeJessica Maree

On May 17 1990, the World Health Organisation removed homosexuality from their Classification of Diseases and Related Health Problems.

May 17th is now celebrated globally as International Day Against Homophobia, Biphobia, Interphobia and Transphobia (commonly referred to as IDAHOBIT).

Despite no longer being identified as a disease or a criminal offence (the last state in Australia to decriminalize homosexuality was Tasmania as recently as 1997) LGBTQIA+ Australians continue to face discrimination.[1]

This article highlights that the current wording used in Australian anti-discrimination legislation in relation to LGBTQIA+ people might be a barrier to LGBTQIA+ clients seeking compensation for discrimination.[2]

Sex Discrimination Act 1984 (Cth)

The following definitions apply to LGBTQIA+ people under Commonwealth legislation:-

gender identity means the gender-related identity, appearance or mannerisms of other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regards to the person’s designated sex at birth.[3]

intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female or male.[4]

sexual orientation means a person’s sexual orientation towards: (a) persons of the same sex; or (b) persons of a different sex; or (c) persons of the same sex and persons of a different sex.[5]

Anti-Discrimination Act 1977 No 48 (NSW)

The corresponding state-based definitions in NSW are as follows:-

homosexual means male or female homosexual.[6]

man means a member of the male sex irrespective of his age.[7]

woman means a member of the female sex irrespective of her age.[8]

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 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.[9]

What’s Missing?

While these definitions are generally understood within the legal profession to provide all LGBTQIA+ people access to compensation if they have been discriminated against, the wording used in our current laws could be deterring clients from taking legal action.  This could be due to an LGBTQIA+ person believing their gender identity, sex status or sexual orientation is not protected under the current definitions.

For example, a non-binary person may decide not to pursue a discrimination claim because they believe their identity does not fall within the definitions in either the State or Federal legislation, assuming that the law only provides a course of action for someone who identifies as a man or a woman.

Whilst all LGBTQIA+ clients have the right to make a discrimination claim under the current State and Federal Legislation, more expansive wording might increase the number of LGBTQIA+ claimants utilising the legal system.  The words we use in our laws are important.  This change would be another significant step towards a future free from discrimination.

If you believe you have been subject to discrimination due to your gender identity, sex status or sexual orientation, please contact Carroll & O’Dea Lawyers.

Jessica Maree, Lawyer 

Alexandra Longbottom, Associate 


[1] Australian Human Rights Commission, Face the facts: Lesbian, Gay, Bisexual, Trans and Intersex People, 2014 https://humanrights.gov.au/our-work/education/face-facts-lesbian-gay-bisexual-trans-and-intersex-people.
60% experience verbal homophobic abuse.
20% experience physical homophobic abuse.
10% experience other types of homophobia.
Transgender and gender diverse people experience significantly higher rates of non-physical and physical abuse when compared with gay men and women.
[2] Ibid.
34% of LGBTQIA+ people hide their sexuality or gender identity whilst accessing services due to fear of discrimination and abuse. 42% hide their identities at social and community events. 39% hide their identities at work.
Highlighting correct wording and inclusivity within our organisation can prevent LGBTQIA+ clients not accessing us due to fear of discrimination and abuse.
[3] s 4(1)
[4] ibid
[5] ibid
[6] s 4(1)
[7] ibid s 23
[8] ibid
[9] Ibid s 38A.

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