The Anti-Discrimination Act 1977 (NSW) is often discussed as though it contains a single modern framework of protected characteristics. It does not.
The Act has been amended repeatedly since 1977, and its protections are organised into separate Parts dealing with different grounds. Sex is protected under Part 3. Transgender status is protected separately under Part 3A. Homosexuality is protected under Part 4C.
What does the Act mean by sex?
Section 23 provides definitions for Part 3:
“man” means a member of the male sex
“woman” means a member of the female sex.
The definitions apply to Part 3 and do not provide a general definition of “sex” for every provision of the Act. The Act does not then provide a comprehensive statutory explanation of what constitutes male or female sex.
This matters because Part 3’s discrimination provisions use sex as the relevant ground.
Section 24 covers both direct and indirect sex discrimination. Direct discrimination involves less favourable treatment because of a person’s sex, or the sex of a relative or associate, compared with a person of the opposite sex in the same or materially similar circumstances. Indirect discrimination can arise where an unreasonable requirement or condition disproportionately affects people of the opposite sex.
The Act also expressly recognises characteristics associated with sex. Section 24 extends the concept to characteristics that generally appertain to, or are generally imputed to, persons of that sex, with specific provisions concerning pregnancy and breastfeeding.
Transgender status is a separate protected ground
Part 3A does not use the expression “gender identity”. It protects transgender status.
Section 38A defines a transgender person by reference to a person who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; a person who has identified in that way; or, in the case of a person of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex. The definition also covers a person who is thought to be transgender whether or not they actually are.
The definition therefore has a particular statutory structure. It is not simply a general protection for every form of gender identity.
Section 4 also defines a recognised transgender person by reference to alteration of the person’s recorded sex under the NSW Births, Deaths and Marriages Registration Act 1995 or corresponding interstate legislation.
That distinction is important because section 38B gives recognised transgender people an additional form of protection.
What does transgender discrimination prohibit?
Section 38B contains three principal forms of protection.
It prohibits:
- less favourable treatment because a person is transgender, or is thought to be transgender;
- unreasonable requirements or conditions that disproportionately affect transgender people; and
- in the case of a recognised transgender person, treating that person as their former sex, or imposing an unreasonable requirement based on their former sex.
This means that the Act contains several distinct concepts: transgender status, recognised transgender status, identified sex and former sex.
They should not simply be collapsed into the word “sex”.
Anti-Discrimination NSW itself explains the current law in these terms, including the specific protection against treating a recognised transgender person as their former sex.
Homosexuality is also a separate statutory ground
Part 4C protects against discrimination on the ground of homosexuality.
Section 49ZF extends the concept to a person being thought to be homosexual, whether or not that person actually is homosexual. Section 49ZG then prohibits direct and indirect discrimination on that ground.
The Act therefore does not currently use “sexual orientation” as the name of this protected ground.
Where the Act expressly recognises sex-based distinctions
The Act does not treat every distinction based on sex as automatically unlawful. There are circumstances in which Parliament has expressly recognised that sex can be legally relevant.
Employment, searches and intimate duties
Section 31 creates a genuine occupational qualification exception to Part 3.
It includes circumstances involving privacy and decency, entering lavatories used by persons of a particular sex, searching persons of a particular sex, entering areas used for undressing, bathing or showering, and certain custodial and personal welfare functions.
This is an employment exception to sex discrimination. It is not a general statement that all sex-separated facilities are automatically exempt from the Act.
Importantly, Part 3A does not contain an identical general genuine-occupational-qualification provision.
Single-sex education
Section 31A contains specific provisions concerning education, including an exception concerning institutions conducted solely for students of the opposite sex.
Section 31A(4), inserted when the transgender provisions were introduced, provides that admission of a transgender person who identifies with the sex of the students for whom the institution is conducted does not, for the purposes of the relevant exception, alter the institution’s status as a single-sex institution.
The provision is therefore a status-preserving rule. It does not, by itself, create a general rule determining every question about admission or treatment of transgender students.
Goods and services
Section 33 prohibits sex discrimination in the provision of goods and services, including refusing to provide goods or services or providing them on discriminatory terms. There is a limited exception where a skill is commonly exercised differently for men and women and is provided to one sex only in accordance with normal practice.
Part 3A contains a corresponding provision for transgender discrimination.
This is significant for facilities and services because access to publicly available facilities or services may fall within the Act’s goods-and-services provisions. The precise legal position depends on the particular facility, the conduct complained of and any applicable exception or exemption.
Accommodation
Section 34 prohibits discrimination in the provision of accommodation, including refusing an application, imposing discriminatory terms, restricting benefits or evicting a person.
There is a limited exception for certain private accommodation where the provider or a near relative lives, or intends to continue living, on the premises. Part 3A contains corresponding accommodation provisions for transgender discrimination.
This becomes particularly important for specialist accommodation such as women’s refuges.
The Act does not contain a simple provision saying that every women’s refuge is automatically exempt from discrimination law. Instead, sex-specific services may rely on a specific exception where one applies, or on the exemption and certification mechanisms in sections 126 and 126A.
Sport: Parliament has addressed the interaction expressly
Sport provides one of the clearest examples of the Act dealing with sex and transgender status separately.
Section 38 provides that Part 3 does not make it unlawful to exclude a person of one sex from participation in a sporting activity, subject to specified exceptions including coaching, administration and prescribed sporting activities.
Section 38P separately provides that Part 3A does not make it unlawful to exclude a transgender person from participation in a sporting activity for members of the sex with which the transgender person identifies, again subject to specified exceptions.
The important point is not that one provision simply overrides the other. It is that Parliament has created specific rules within both Parts governing sporting participation.
That is different from areas where the Act contains no comparable express provision.
Exemptions and certifications
Sections 126 and 126A provide additional mechanisms for dealing with activities that might otherwise contravene the Act. An exemption under section 126 may permit specified conduct that would otherwise breach the Act.
Section 126A allows the NSW Attorney General to certify a program, activity or facility designed to improve access for a group experiencing discrimination or to meet that group’s special needs.
This mechanism is directly relevant to sex-specific services.
Anti-Discrimination NSW currently gives accommodation or refuges for women and their dependent children only as an example of a program for which certification may be relevant. Its current list also includes a number of women’s refuges, women’s housing programs, women’s health services and women-only facilities with certifications, many of them operating indefinitely.
That does not mean that every women-only service requires certification, nor that every women-only service is automatically lawful. The legal position depends on the particular provision, exception, exemption or certification applying to the activity.
Where sex and transgender status intersect
This is the central structural issue.
The Act protects two different grounds: sex under Part 3 and transgender status under Part 3A.
There is no general provision stating that sex always takes priority over transgender status. Nor is there a general provision stating that transgender status always takes priority over a sex-based rule.
Section 4A is relevant where more than one reason is involved. It provides that where an act is done for two or more reasons, and one of those reasons is unlawful discrimination under the Act, the act is taken to have been done for that reason whether or not it was the dominant or a substantial reason.
Consequently, where an organisation makes a sex-based decision and the person affected is also protected under Part 3A, the legal analysis cannot stop at simply identifying one protected characteristic.
The relevant questions include:
- What ground was the decision actually based on?
- Which Part of the Act applies?
- Does a specific exception apply?
- Is there an exemption under section 126?
- Is there a certification under section 126A?
- Has Parliament expressly addressed the interaction in that particular setting?
These questions can arise in sport, single-sex education, women’s refuges, change rooms and showers, searches and custody, and health or other intimate services.
The answers are not necessarily the same in each setting.
Summary of Legislative Position
The NSW Act starts with a statutory protection of sex. It later added separate protections for transgender status and for homosexuality. It did not replace sex with gender identity, and it did not enact sexual orientation as a general attribute.
The important legal question is therefore not whether transgender people are protected — they are — nor whether sex is protected — it is. Both statements are true within the scope of the Act. The harder question arises where a distinction based on one ground affects a person who is also protected under the other.
In some settings Parliament anticipated that problem and answered it in the text. Sport is the clearest example: section 38 permits exclusion from a sporting activity by sex, and section 38P separately permits exclusion of a transgender person from the sporting activity of the sex with which that person identifies. Other specific answers appear in private education, the single-sex school status rule in section 31A(4), certain sexed jobs under section 31, superannuation administration under section 38Q, and certified special-needs programs under section 126A.
In other settings the Act does not supply a general rule. It contains no hierarchy stating that sex always prevails over transgender status, or the reverse. Toilets, change rooms, hospital wards, and women’s refuges without certification fall to be decided by the particular prohibition, comparator, exception, exemption or certification, and by whether the decision was made on the ground of sex, transgender status, or both.
That is why the statutory language matters. Sex discrimination compares a person with a person of the opposite sex. Transgender discrimination compares a transgender person with a person not thought to be transgender. Those are different questions. They should not be collapsed by reading into the Act a concept — “gender identity” — that Parliament has not enacted.
The NSW Act should therefore be applied according to the protections it actually contains: sex is a protected ground; transgender status is a separate protected ground; homosexuality is a separate protected ground; and the relationship between them must be examined provision by provision.
Reference:
Anti-Discrimination Act 1977 (NSW). Current version. – https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#statusinformation