Sexuality and your rights

Sexuality, under the Anti-Discrimination Act, means people who are heterosexual, homosexual (gay or lesbian), or bisexual. two people holding hands


Rights for gay, lesbian, and bisexual 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 the information provided here, we will use the umbrella term LGBTI , as well as the words gay, lesbian and bisexual.

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

The sexuality 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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Sexuality discrimination

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

Discrimination can also happen when there is a rule or requirement that disadvantages gay men, lesbians, or bisexual people more than heterosexual people.

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

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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Sexuality discrimination examples

Some examples of discrimination covered by the Act include:

  • a specialist refusing medical care to a woman because she is a lesbian;
  • a real estate agent choosing not to rent a property to a same-sex couple, even though they are otherwise the strongest applicants;
  • a gay man being refused membership of a gym on the basis of his sexuality;
  • a workplace where homophobic jokes are constantly made in front of a staff member who identifies as  bisexual.

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Equal opportunity and welfare measures

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

  • benefits LGBTI people (welfare measure); or
  • promotes equal opportunity of LGBTI people (equal opportunity measure).

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 the basis that it is an event to promote equal opportunities 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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Sexuality 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 lesbian, bisexual, or gay, it may be vilification.

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

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

It is against the law to publicly incite hatred towards, serious contempt for, or severe ridicule of a person or a group of people because of their sexuality.

Sexuality 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 means to detest or intensely dislike someone.
    • Contempt is the attitude that someone is worthless or inferior.
    • Ridicule is making fun of or laughing at someone.
    • Serious means important, and severe means harsh or extreme.
  4. Sexuality is a substantial reason for the incitement.

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Sexuality vilification examples

Some examples of vilification covered by the Act include:

  • a radio host using highly offensive homophobic language, laughing at and belittling gay and bisexual men on the air;
  • posters that say that lesbian mothers are damaging their children because they are exposed to their mothers' sexuality;
  • adverse comments inciting hatred towards all gay men written on a gay man's publicly accessible social media page for his business.

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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;
  • a fair report of a public act.

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Serious sexuality 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 sexuality vilification example

An example of serious sexuality vilification might be:

A sign that has been posted in a public park stating: Poofters lingering in this park will be bashed. Keep out!

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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 a lesbian woman relating to her sexual history with her partner.

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Unlawful requests for information

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

For example, during a job interview an employer asks you about your relationship with your same-sex partner.

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