The Sex Discrimination Act 1984 (Cth) provides that a person discriminates against another person on the ground of the gender identity of a person if the discrimination occurs by reason of:
- the gender identity of the aggrieved person
- a characteristic that applies generally to persons who have the same gender identity as the aggrieved person, or
- a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person.
This includes a person with an intersex status.
The sex of a person may include the gender assigned to a post-operative transsexual.
Sexual harassment has been found to constitute sex discrimination. Similarly, sexual harassment may constitute adverse action against a person by reason of the person’s sex.
Whilst the dictionary meaning of ‘harass’ implies repetition, one act may be sufficient.
A person sexually harasses another person if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
- the person engages in other unwelcome conduct of a sexual nature in relation to the other person;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Conduct motivated by general assumption and stereotypes, known as ‘imputed characteristics’, can constitute conduct based on sex.