This analysis examines the Anti-Discrimination Act 1991 (Qld) (the Act) as currently in force, with particular attention to the protected attributes of sex, gender identity, sexuality and sex characteristics.
1. Definitions (Schedule 1 – Dictionary)
The Act does not define “sex”.
Gender identity, of a person—
(a) is the person’s internal and individual experience of gender, whether or not it corresponds with the sex assigned to the person at birth; and
(b) without limiting paragraph (a), includes—
(i) the person’s personal sense of the body; and
(ii) if freely chosen—modification of the person’s bodily appearance or functions by medical, surgical or other means; and
(iii) other expressions of the person’s gender, including name, dress, speech and behaviour.
Sex characteristics, of a person, means the person’s physical features and development related to the person’s sex, and includes—
(a) genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and
(b) the person’s chromosomes, genes and hormones that are related to the person’s sex; and
(c) the person’s secondary physical features emerging as a result of puberty.
Sexuality means heterosexuality, homosexuality or bisexuality.
The definition of gender identity is based on a person’s internal and individual experience of gender. It does not require legal recognition, medical transition, or consistency with the person’s sex at birth. By contrast, sex characteristics is a biological concept referring to a person’s physical sexed characteristics.
The Act does not define sex, nor does it define the terms woman, man, male or female. Accordingly, while sex is a protected attribute, the legislation provides no express guidance as to whether those terms are to be interpreted by reference to biological sex, legal sex, or another criterion.
2. Protected Attributes (Section 7)
Section 7 prohibits discrimination on the basis of the following attributes (relevant extracts):
- sex;
- gender identity;
- sexuality;
- sex characteristics; and
- association with, or relation to, a person identified on the basis of any of the above attributes.
Sex, gender identity, sexuality and sex characteristics are each independent protected attributes. Discrimination on the basis of any one of them, or a combination of them, is prohibited across the areas of activity covered by the Act.
3. Meaning of Discrimination
Direct discrimination (section 10)
Direct discrimination occurs where a person treats, or proposes to treat, a person with a protected attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Motive is irrelevant. Where there are multiple reasons for the treatment, the protected attribute need only be a substantial reason for it.
Indirect discrimination (section 11)
Indirect discrimination occurs if a person imposes, or proposes to impose, a term:
(a) with which a person with an attribute does not or is not able to comply;
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
“Term” includes a condition, requirement or practice.
Reasonableness is assessed having regard to all relevant circumstances, including the consequences of non-compliance, the availability and cost of alternative measures, and the financial circumstances of the person imposing the requirement.
4. Areas of Activity
The prohibitions apply across a wide range of areas of public life, including:
- Work and work-related areas;
- Education;
- Goods and services (section 46);
- Accommodation;
- Superannuation and insurance;
- Disposition of land;
- Club membership and affairs;
- Local government; and
- Administration of State laws and programs.
The prohibition relating to goods and services (section 46) is particularly relevant to commercial single-sex spaces. A person who supplies goods or services, whether or not for reward or profit, must not discriminate by refusing to supply them, imposing discriminatory terms, supplying them in a discriminatory manner, or treating a person unfavourably in connection with their supply.
The Act contains a limited exception for certain non-profit associations established for social, literary, cultural, political, sporting, athletic, recreational or community service purposes that do not operate for profit. Commercial businesses are otherwise fully subject to the Act.
5. Key Exemptions Relevant to Sex, Gender Identity and Related Attributes
The Act contains both specific and general exemptions. Those most relevant to sex-based distinctions include:
Single-sex accommodation (section 30)
It is not unlawful to discriminate on the basis of sex in relation to accommodation where:
- the accommodation is not equipped with separate sleeping accommodation for people of each sex;
- it is already occupied by people of one sex and not the opposite sex; and
- providing separate accommodation would impose unjustifiable hardship.
This exemption applies only in the limited circumstances specified in the Act and does not create a general right to restrict accommodation according to biological sex.
Clubs (section 98)
A club may make limited sex-based distinctions by restricting access to a membership benefit where it is not practicable for males and females to enjoy the benefit at the same time, provided the same or an equivalent benefit is supplied separately, or arrangements provide a reasonably equivalent opportunity.
Competitive sport (section 111)
Participation in a competitive sporting activity may be restricted to either males or females where the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity.
Subsection (3) further provides that participation may also be restricted on the basis of gender identity where such a restriction is reasonable having regard to those same physical considerations.
These provisions do not apply to children under 12 years of age, nor do they extend to coaching, officiating or administrative roles.
Welfare measures (section 104)
A person may undertake an act designed to benefit members of a group possessing a protected attribute where the purpose of the act is not inconsistent with the Act.
Examples provided in the legislation include:
- accommodation restricted to women who have experienced domestic violence; and
- travel concessions for pensioners or priority seating for pregnant or frail people.
This provision authorises special measures designed to promote substantive equality. It is not a general exemption permitting sex-based exclusions.
Tribunal exemptions (section 113)
The Queensland Civil and Administrative Tribunal may grant a temporary exemption, for a period of up to five years (renewable), from specified provisions of the Act. Exemptions may be subject to conditions and limited to particular activities or circumstances.
There is no general, automatic exemption permitting commercial services to be restricted to one biological sex only, nor any provision that gives priority to the protected attribute of sex over gender identity.
6. Interaction Between the Protected Attributes
Because sex is not defined, while gender identity is defined by reference to a person’s internal experience of gender that may differ from the person’s sex assigned at birth, the two attributes may give rise to competing claims in some circumstances.
Depending on the circumstances, a policy or decision framed by reference to biological sex may give rise to a claim of discrimination on the basis of gender identity or sex characteristics.
Conversely, a policy based upon gender identity may, depending on its operation, give rise to a claim of discrimination on the basis of sex.
The Act treats sex, gender identity and sex characteristics as independent protected attributes. It establishes no hierarchy or interpretive rule to determine how conflicts between those attributes should be resolved.
The welfare measures exemption (section 104) and the tribunal exemption power (section 113) provide the principal legislative mechanisms by which sex-based distinctions may be permitted in particular circumstances.
The competitive sport exemption is the only provision that expressly contemplates restrictions based on gender identity where considerations of strength, stamina or physique make such restrictions reasonable.
7. Summary of Legislative Position
- Sex is a protected attribute but is not defined.
- The Act does not define the terms woman, man, male or female.
- Gender identity is a protected attribute defined by reference to a person’s internal and individual experience of gender, which may or may not correspond with the person’s sex at birth, and includes bodily sense, medical modification and gender expression.
- Sex characteristics is a protected attribute defined by reference to a person’s biological physical characteristics relating to sex.
- Sexuality is limited to heterosexuality, homosexuality and bisexuality.
- Commercial provision of goods and services is subject to a broad prohibition on discrimination under section 46.
- Specific exemptions exist for certain forms of single-sex accommodation, clubs and competitive sport, while special welfare measures and tribunal exemptions may also permit differential treatment in limited circumstances.
- The Act contains no statutory definition of sex and no interpretive provision specifying that references to sex, male, female, woman or man are to be understood as biological sex.
- Nor does the Act establish any hierarchy between the protected attributes of sex, gender identity and sex characteristics. Questions concerning the interaction of those attributes are therefore left to the application of the Act in individual cases, subject to the specific exemptions contained within the legislation.
This is the legislative framework as it currently stands under the Anti-Discrimination Act 1991 (Qld).
Note on the Human Rights Act 2019 (Qld)
Queensland also has a Human Rights Act 2019 (Qld). While this analysis focuses solely on the Anti-Discrimination Act 1991 (Qld), the two Acts may interact in certain circumstances.
The Human Rights Act protects a range of human rights, including the right to recognition and equality before the law, and applies primarily to public entities and the performance of public functions. Public entities are generally required to act and make decisions compatibly with human rights and to give proper consideration to relevant human rights when making decisions.
The Queensland Human Rights Commission administers both the Anti-Discrimination Act 1991 and the Human Rights Act 2019. Accordingly, in some circumstances, complaints, investigations or decision-making processes under the Anti-Discrimination Act may also involve consideration of rights protected under the Human Rights Act. The extent of that interaction will depend on the facts and legal issues arising in each individual case.
This note is provided for general context only. It is not intended to be a comprehensive analysis of the Human Rights Act 2019 (Qld) or its operation.
Reference:
Anti-Discrimination Act 1991 (Qld). Current version. – https://www.legislation.qld.gov.au/view/html/inforce/current/act-1991-085
Human Rights Act 2019 (Qld). Current version – https://www.legislation.qld.gov.au/view/html/inforce/current/act-2019-005