Gender identity and your rights

Gender identity is a person's innermost concept of self as male or female, both or neither, how an individual perceives themselves, and what they call themselves.

Gender identity , under the Anti-Discrimination Act 1991 (Qld), has a particular definition. It means that the person:
(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or
(b) is of indeterminate sex and seeks to live as a member of a particular sex.Blue, pink and white transgender palg


Rights for trans* people under the Act

We acknowledge that terminology is very important and that not all people like to be defined by the same terms. For the purpose of this information, we will refer to trans* which is an umbrella term for people who are gender diverse.

For clarity about the terminology we use in this section, refer to the LGBTI Terminology web page.

The gender identity discrimination and vilification sections below explain contraventions under the Queensland Anti-Discrimination Act 1991 . Note that the same factual situation may give rise to more than one contravention.

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Discrimination against trans* people

If you are treated less favourably than someone else (in the same or similar circumstances) because of your gender identity, it may be discrimination.

Discrimination can also happen when there is a rule or requirement that disadvantages transgender people more than cisgender people. Cisgender means that a person's biological sex and gender expression are the same.

Sometimes, discrimination happens because someone makes an assumption about your gender identity that is not correct. For example, someone thinks you are trans* and treats you unfavourably because of it, but you are actually cisgender.

Discrimination on the basis that you once identified as a trans* person but no longer identify as trans* is also covered, because the Act covers discrimination because of attributes a person previously held.

Not all discrimination is covered by the Act. The Act does not cover things that happen in private, however sexual harassment is covered wherever it happens. See the sexual harassment section of this page for more information.

The Act covers you in areas of public life, including: while you are working, at school or college, while obtaining goods and services, when renting or buying property, when obtaining insurance or superannuation, or in dealing with state or local government.

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Gender identity discrimination examples

Some examples of gender identity discrimination covered by the Act include:

  • a beauty therapist refused to treat a woman because she is trans*;
  • a workplace where transphobic jokes are constantly made in front of a staff member who identifies as trans*;
  • a trans* woman is refused entry to a women's only gym;
  • in the workplace, a trans* man is constantly refer to as her and she , despite making it clear that he identifies as male and wants to be referred to by male pronouns.

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Gender dysphoria

The Act also covers unfavourable treatment on the grounds of an impairment. As gender dysphoria is a recognised impairment, sometimes a situation may be covered by gender identity discrimination, impairment discrimination, or both.

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Discrimination against intersex people

If you are treated less favourably than someone else in the same or similar circumstances because of you are intersex, it may be discrimination.

Sometimes, discrimination happens because someone makes an assumption about you being intersex that is not correct. For example, someone thinks you are intersex and treats you unfavourably because of it, but you are actually not intersex.

Intersex discrimination examples

Some examples of discrimination covered by the Act include:

  • a colleague calling an intersex person a freak or hermaphrodite behind their back;
  • a barber refusing to provide a haircut to an intersex person because they only serve male customers;
  • an insurer rejecting a claim for treatment of endometriosis on the basis that the intersex applicant is not recognised as female.

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Equal opportunity and welfare measures

The Act has some exemptions for discrimination, if it is a positive measure that:

  • promotes equal opportunity of LGBTI people; or
  • is of benefit to LGBTI people.

Until LGBTI people are proportionally represented in the oil and gas industry, an LGBTI careers event for the oil and gas industry may be exempt from discrimination on this basis that it is an event to promote equal opportunity for LGBTI people.

A health service working exclusively with HIV positive clients who identify as LGBTI may be exempt from discrimination on the basis of being a welfare measure.

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Exemptions

There are some situations that are not discrimination because there is an exemption that applies in the circumstances. Access more information on Exemptions.

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Gender identity vilification

Vilification is against the law in Queensland.

If someone publicly incites hatred towards, serious contempt for, or severe ridicule of you because you identify as trans*, it may be vilification.

Publicly inciting hatred towards, serious contempt for, or severe ridicule of a group of people because they identify as trans* may also be vilification. For example, inciting hatred towards all trans* women.

Gender identity vilification has four elements, and a vilification complaint must have all of them:

  1. It happened in public. A public act means:
    • any form of communication to the public, such as speaking, displaying notices, broadcasting, posting on the internet and social media; and
    • any conduct that the public can observe, including actions, gestures, wearing or displaying of clothing, signs, flags, emblems or insignia.
  2. It is capable of inciting. Incite means:
    • to urge on, stimulate or prompt to action.
    • It is not necessary that any particular person was incited.
  3. It is capable of inciting hatred towards, serious contempt for, or severe ridicule of a person or group of persons.
    • Hatred is to detest or intensely dislike someone.
    • Contempt is the attitude that someone is worthless or inferior.
    • Ridicule is making fun of, deriding, or laughing at someone.
    • Serious means important.
    • Severe means harsh or extreme.
  4. Gender identity is a substantial reason for the incitement.

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Gender identity vilification examples

Some examples of gender identity vilification covered by the Act include:

  • a neighbour of a trans* woman yelling out from a unit complex that they intend to bash the shemale living next door;
  • a radio host joking on air about being constantly bothered by a group of chicks with dicks freaks at a nightclub, warning other men about the disgusting trannies trying to trick them into going home with them.

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Vilification defences

There are some defences to vilification where the conduct is:

  • done reasonably and in good faith for academic, scientific, artistic, research or religious discussion, or other purposes in the public interest; or is
  • a fair report of a public act.

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Serious gender identity vilification

Serious vilification is a criminal offence under the Anti-Discrimination Act 1991. It is vilification which includes a threat of physical harm to a person or their property.

Serious vilification occurs where there is:

  • a public act;
  • knowingly or recklessly;
  • inciting;
  • hatred towards, serious contempt for, or severe ridicule of;
  • a person or group of persons;
  • on the ground of the sexuality of the person or group;
  • in a way that includes:
    • threat of physical harm to property or person; or
    • inciting others to threaten physical harm to property or person.

Serious vilification is dealt with by the police.

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Serious gender identity vilification example

An example of serious sexuality vilification is:

A group of people went to the home of a transgender woman and yelled abuse and obscenities about her gender identity. One of the group then pulled wooden palings from the woman's fence and called out to the others Has anyone got a box of matches so we can burn this fxxxing fag's place down?

Note: This was an actual case that was heard by the Queensland Civil and Administrative Tribunal (Brosnahan v Ronoff [2011] QCAT 439,16 August 2011).

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Serious vilification – no defences

The defences available to unlawful vilification (a fair report, an act done in the public interest etc.) do not apply to the criminal offence of serious vilification.

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Sexual harassment

If you experience unwelcome conduct of a sexual nature, it may be sexual harassment. Sexual harassment includes:

  • unwelcome touching, kissing, staring or leering, unnecessary familiarity such as deliberately brushing up against you;
  • suggestive comments or jokes about you;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates, or requests for sex;
  • insults, taunts or intrusive questions about your private life or body;
  • sexually explicit emails, text messages and social media posts; and
  • any other unwelcome conduct of a sexual nature in relation to you.

Sexual harassment is conduct of the kind described above, that is done with the intention of offending, humiliating or intimidating you, or where a reasonable person would have anticipated the possibility that you would be offended, humiliated or intimidated by those actions.

It has nothing to do with mutual attraction or friendship between people and happens regardless of the sex of the individuals or the sexuality of those involved.

Sexual harassment does not have to be deliberate or repeated to be unlawful.

Some sexual harassment, such as sexual assault, indecent exposure and stalking is also a criminal offence.

Sexual harassment can happen anywhere: while at work, in a shop or restaurant, at school or college, when looking for accommodation, or when dealing with tradespeople, businesses, or state or local government officials.

Sometimes ill treatment of you may be both discrimination and sexual harassment. For example, if an offensive joke is made in the workplace about an intersex person regarding their genitalia.

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Unlawful requests for information

It is against the law to ask a person, either in person or in writing, to supply information on which discrimination might be based.

Examples of unlawful requests for information might include:

  • during a job interview an employer asks you about whether you are pre or post-operative;
  • you are asked if you have male or female genitalia by a security guard when trying to enter a nightclub.

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