I’ve written a lot about Australian LGBTI anti-discrimination and anti-vilification issues over the years, including specific articles on each relevant Commonwealth, State and Territory law (those posts can be found here).

This article seeks to take a broader approach, comparing who these laws cover, what religious exceptions they contain, and whether they provide protection against vilification, among other key questions. [Up to date at 21 February 2024]

1. What is the relevant law?

2. Are lesbians, gay men and bisexuals protected against discrimination?

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (relatedly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

3. Are transgender people protected against discrimination?

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others have traditionally only protected trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary or other gender diverse identities.[iii]Thankfully, most jurisdictions have moved from the latter, to the more-inclusive former, category in the past few years.

At this stage, seven jurisdictions cover people with both binary and non-binary gender identities (with the most recent jurisdiction to adopt a more inclusive definition of gender identity being Queensland, with legislation passed in mid-2023, commencing in April 2024).

Of the other two:

• The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government).[iv] Thankfully, the Western Australian Law Reform Commission review of the WA Equal Opportunity Act recommended changes to ensure all trans, non-binary and gender diverse people are covered. The WA Government accepted this recommendation, and had committed to introduce legislation to give it effect by the end of 2023, but there are growing fears they will not act before the next state election in early 2025; and
• The NSW Anti-Discrimination Act 1977 also currently only covers transgender people with binary gender identities. Unfortunately, and unlike WA, the NSW Government have not yet promised to amend this protected attribute. However, they have referred the entire Act to the NSW Law Reform Commission for review. Independent Member for Sydney Alex Greenwich has also introduced his Equality Legislation which would ensure non-binary people are finally covered, although it is unclear whether these amendments will be successful.

4. Are intersex people protected against discrimination?

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT, South Australia, Victoria, the Northern Territory and most recently Queensland, have all introduced amendments to protect intersex people against discrimination.

It should be noted however that intersex advocates have called for this terminology to be updated, with ‘intersex status’ replaced with the protected attribute of ‘sex characteristics’ (as part of the historic March 2017 Darlington Statement).

To date, the Tasmanian Parliament has amended its Anti-Discrimination Act 1998 to cover ‘intersex variations of sex characteristics’, while in August 2020 the ACT Legislative Assembly replaced intersex status with ‘sex characteristics’, with a definition supported by intersex organisations. In February 2021, the Victorian Parliament added ‘sex characteristics’ to the Equal Opportunity Act 2010. The Northern Territory Parliament added ‘sex characteristics’ to their Anti-Discrimination Act 1992 in late 2022, while Queensland’s 2023 amendments also employ the terminology of sex characteristics.

Similar to non-binary protections (or lack of protections) outlined above, the two jurisdictions which do not protect intersex people at all are WA and NSW. And, just like non-binary, there is a WA Law Reform Commission recommendation and Government commitment to introduce these reforms – but time is running out, and a current NSW Law Reform Commission inquiry, and the Greenwich Equality Bill – but no NSW Government commitment.

Finally, it should be noted that, as part of debate surrounding its amendments to the Fair Work Act (see point 11, below) in late 2022, the Commonwealth Government has promised to update the terminology of ‘intersex status’ to ‘sex characteristics’ in both the Sex Discrimination Act and Fair Work Act, although the timing of these amendments remain unclear.

5. Are LGBT people protected against discrimination by religious organisations (general)?

As I have written extensively elsewhere, one of the key weaknesses of many LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

There is only one LGBTI anti-discrimination law in Australia that offer full legal protection against discrimination by religious organisations, in all circumstances: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics (or relationship status).

The amendments passed in Victoria (via the Equal Opportunity (Religious Exceptions) Amendment Act 2021) come close, only allowing discrimination on the basis of religious belief in religious schools (in relation to both students and teachers), in employment and in service provision by religious organisations that is Government funded. However, it continues to allow discrimination on the basis of sexual orientation and gender identity in service provision by religious organisations where it is not Government funded.

The ACT Discrimination Act 1991 has provided protections in relation to religious schools since 2019 (covered in more detail in the following questions) and, thankfully, amendments passed in late March 2023 have extended protections in both the delivery of goods and services, and employment, in relation to religious organisations which operate in other sectors.

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales and Western Australia provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

“Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers of religious or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religious or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avid injury to the religious susceptibilities of the adherents of that religion.”

Fortunately, the Western Australian Law Reform Commission has recommended that their religious exceptions be narrowed, in line with the Victorian approach, although as explained in relation to earlier questions, it is no unclear whether legislation will be passed before the 2025 State election.

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities, using public monies).

The Queensland Anti-Discrimination Act 1991 actually contains the fifth-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers, too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii]  The 2022 Queensland Human Rights Commission review of the Anti-Discrimination Act 1991 has also recommended a similar approach to Victoria – but once again, despite Government commitments to introduce a new Act before the end of 2023, there is now no guarantee they will act prior to the October 2024 State election.

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they are (probably, although not conclusively) able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

Although it does still apply across all attributes, including sexual orientation, gender identity and sex characteristics, this wording at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (and recent changes have seen LGBT teachers finally protected against discrimination there too).

6. Are LGBT students protected against discrimination by religious schools?

There are five jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania, Queensland, the Australian Capital Territory, the Northern Territory and, most recently, Victoria.

In another jurisdiction, the level of protection is debatable. In South Australia section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is likely these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

In the other jurisdictions, namely the Commonwealth, NSW, and Western Australia, LGBT students do not have protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

Thankfully, the WA Law Reform Commission has recommended, and the WA Government has agreed, to protect LGBT students in religious schools against discrimination (but – and admittedly this is getting repetitive – it is unclear when this will be introduced). The Commonwealth Government has also referred the issue of religious exceptions and religious schools to the Australian Law Reform Commission for inquiry. It was initially scheduled to report in April 2023, before being extended to 31 December 2023. It has not been handed to Attorney-General Mark Dreyfus, but he is yet to table the document.

It is hoped that LGBT students might be protected as a result of the current NSW Law Reform Commission inquiry into the Anti-Discrimination Act – although the Government has made no clear commitments to do so.

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

7. Are LGBT teachers protected against discrimination by religious schools?

Four Australian LGBTI anti-discrimination laws fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1998, the ACT Discrimination Act 1991, the Victorian Equal Opportunity Act 2010 and, following recent amendments, the NT Anti-Discrimination Act 1992.

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group). Fortunately, the Queensland Human Rights Commission review of the Anti-Discrimination Act has recommended that Don’t Ask, Don’t Tell be repealed, and replaced with genuine protections for LGBT teachers.

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

In the other three Australian jurisdictions (the Commonwealth, NSW and Western Australia[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv] And, once again, the WA Government has agreed to implement Law Reform Commission recommendations to protect LGBT teachers (but date uncertain), while the Australian Law Reform Commission is also looking at this issue federally. As with students, the main hope for teachers in NSW is with the current NSW Law Reform Commission process.

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

8. Are lesbians, gay men and bisexuals protected against vilification?

Only five Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania, the ACT and, most recently, the NT (which added s 20A – prohibiting conduct that ‘offends, insults, humiliates or intimidates’ people, including on the basis of sexual orientation, gender identity and sex characteristics, in late 2022).

In NSW, the situation has been complicated by 2018 amendments to both the Anti-Discrimination Act and the Crimes Act. In short, while lesbians, gay men and bisexuals are all covered by the new ‘inciting violence provisions’ in the Crimes Act, only lesbians and gay men can make civil vilification complaints to Anti-Discrimination NSW.

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. Although it should be noted that the Victorian Parliament previously investigated this issue, and the State Government there has long-promised (and long-failed) to introduce these reforms, while the WA Law Reform Commission has recommended LGBTI vilification provisions be introduced.

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

9. Are trans and intersex people protected against vilification?

Five jurisdictions protect transgender people with binary gender identities against vilification (NSW, Queensland, Tasmania, the ACT and NT). Following mid-2023 amendments in Queensland, four (them alongside Tasmania, the ACT and NT) also fully protect people with non-binary identities.

The situation in NSW is more complicated, and similar to that described earlier: trans, non-binary and intersex people are included in the Crimes Act incitement to violence provisions, but only trans people with binary identities can make civil vilification complaints under the Anti-Discrimination Act.

Both the WA and Victorian Governments have promised but so far failed to introduce their own reforms. Only the Commonwealth and South Australia have failed to take any steps to prohibit anti-LGBTI vilification.

For more on this subject, see Did You Know? Most Australian Jurisdictions Don’t Prohibit Anti-LGBTI Vilification.

10. What other issues exist with Australian LGBTI anti-discrimination laws?

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

• Protected Attributes
• Religious Exceptions, and
• Anti-Vilification Coverage.

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

Thankfully, the Births, Deaths and Marriages Registration Bill 2022, currently before Queensland Parliament, would repeal this provision. [The Queensland Bill has now passed, and this provision will be history come April 2024 – but I am choosing to leave it here as a reminder of how awful the anti-discrimination laws of Australia have been – laws designed to outlaw discrimination have often instead entrenched it].

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

11. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

Between the passage of the Sex Discrimination Act (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, and updates to the Fair Work Act 2009 passed late last year, it was unclear whether trans, gender diverse and intersex workers were covered under the latter – because it included sexual orientation but not gender identity or intersex status/sex characteristics as protected attributes for the purposes of adverse action (section 351) and unlawful termination (section 772) protections.

Thankfully, the Albanese Government has amended the Fair Work Act to explicitly include gender identity and intersex status as protected attributes. Even better, in doing so they publicly committed to updating both the Fair Work Act, and Sex Discrimination Act, to cover sex characteristics (which is the best practice terminology supported by Intersex Human Rights Australia) rather than intersex status in the future.

[As someone who was involved in campaigning for these changes to the Fair Work Act since at least mid-2018, this has been a very satisfying update to write.]

Of course, the extensive religious exceptions which appear in the Fair Work Act 2009, allowing religious organisations to discriminate against LGBTQ employees, should also be repealed.

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For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

• What’s wrong with the Commonwealth Sex Discrimination Act 1984?  
• What’s wrong with the NSW Anti-Discrimination Act 1977? 
• What’s wrong with the Victorian Equal Opportunity Act 2010? 
• What’s wrong with the Queensland Anti-Discrimination Act 1991? 
• What’s wrong with Western Australia’s Equal Opportunity Act 1984? 
• What’s wrong with South Australia’s Equal Opportunity Act 1984? 
• What’s wrong with Tasmania’s Anti-Discrimination Act 1998? 
• What’s wrong with the ACT Discrimination Act 1991? 
• What’s wrong with the Northern Territory Anti-Discrimination Act? 

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Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘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.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as ‘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 nor male.’

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment or persons to provide that aged care.”

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Repealed/footnote removed.

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Footnote removed.

[xvii] Footnote removed.

[xviii] Footnote removed.

[xix] Footnote removed.

[xx] Footnote removed.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Repealed/footnote removed.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also out-dated.