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The law relating to homophobic, biphobic and transphobic harassment

“My schoolteacher said that she didn’t care if I was gay so long as I didn’t ‘parade it around class’. Is this homophobia?”

Homophobic harassment is never acceptable, and it is often unlawful. Here you will find information about your rights and the relevant laws.

You have a number of rights under Victorian and federal law which protect you from discrimination and harassment as a result of your sexual orientation or gender identity. The sources of your rights include the Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth).

August '13 update—Newsflash: New federal law against discrimination
[July 2013] At the end of June 2013 the Australian Parliament amended the Sex Discrimination Act 1984 to make discrimination unlawful on the basis of sexual orientation, gender identity or intersex status.

[Update 2Aug13]: This new protection took effect on 1 August 2013. For more information visit the Australian Human Rights Commission (in a new tab).

For contacts where you can get further information regarding your rights, Find Support.
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Harassment: a form of discrimination

It is against the law for someone to discriminate against you – to treat you unfavourably because of specific characteristics that you have – when that discrimination occurs in a protected area of public life.

Homophobic, transphobic and biphobic harassment are all forms of unlawful discrimination.
Homophobic, transphobic and biphobic harassment is any conduct that humiliates, intimidates, insults, excludes, silences or harms an individual or group on the basis of their actual or perceived sexual orientation or gender identity. Regardless of any ‘reasoning’ behind sexually prejudiced harassment – “the boy needs to learn a lesson” – “people like that don’t belong here” – harassment is harassment and often has legal consequences.

What does homophobic, transphobic and biphobic harassment look like?
It doesn’t matter if it was ‘just a joke’, ‘just my opinion’ or whether it happened ‘just this once’: harassment is harassment. Here are some examples of what sexually prejudiced harassment looks like:

  • Teasing, making jokes or calling someone names based on their actual or perceived sexuality or gender identity, e.g. “dyke”, “faggot”, “freak”, “she-male”, “poof”.
  • Spreading rumours or suggesting to others that someone is gay or lesbian, bisexual or trans, with the effect or intent of causing distress.
  • Withholding tasks from an employee because they’re not “man enough” or “woman enough” to do the job, or threatening an employee’s job security because they may be “different”.
  • Demanding someone keep their sexual identity or gender identity ‘under wraps’ against their will, or exposing someone’s sexual identity or gender identity against their will.
  • Any act of violence or physical abuse against a person because they are (believed or assumed to be) lesbian, gay, bisexual or transgender.

Learn more about homophobia, transphobia and biphobia.

What is discrimination?
Discrimination is the unfavourable or prejudicial treatment of a person based on their membership – or perceived membership – of a certain group or category. In the case of discrimination against LGBTIQ people, discrimination is prejudicial treatment based on the person’s membership – or perceived membership – to the social categories of “gay”, “lesbian”, “bisexual”, “transgender”, “intersex” and “queer”.

It is against the law for someone to discriminate against you on the basis of your perceived or actual gender identity, sexual orientation or lawful sexual activity when that discrimination occurs in a protected area of public life.

Two types of discrimination
The two types of discrimination are:

  1. Direct discrimination – which occurs if someone treats you unfavourably because of, for example, your sexual orientation – for example you are regularly passed over for a promotion or are excluded from a venue because of your sexual orientation.
  2. Indirect discrimination – which occurs if someone unreasonably imposes a requirement or practice that disadvantages a group of people like you. This may occur in situations where treating everyone the same is unfair. For example, if a girls high school gave all students the ability to invite a boy to the school formal this would, in substance, unfairly disadvantage same sex attracted students who wished to invite female partners rather than male partners.

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Discrimination can be unlawful

When and where is discrimination prohibited?
The law prohibits discrimination in the following areas:

  • employment and employment-related areas;
  • education;
  • where goods and services are provided;
  • land sales and transfers;
  • accommodation;
  • clubs;
  • sport; and
  • local government.

The law also prohibits someone from requesting, authorising, encouraging, or assisting others to engage in discrimination. For example, if your sport team captain excludes you from a sport due to their perception of your sexual orientation, and the sport supervisor witnesses this but does not object to it, then the sport supervisor’s failure to act can be implied authorisation for the sport team captain to discriminate against you on the basis of your sexual orientation. If you wish to complain about this conduct, then you can bring a dispute to the VEOHRC or make an application to the Tribunal against either the sport team captain, the sport supervisor, or both of them.

For more infomation please visit Take Action.

What characteristics are protected against discrimination?
Victorian law prohibits discrimination based on the following:

  • age;
  • carer status, family responsibilities, parental status, marital status;
  • disability;
  • employment activity, industrial activity;
  • gender identity, sexual orientation and lawful sexual activity;
  • political and religious belief;
  • race; and
  • sex.

It is possible for a person to be discriminated against because of a combination of characteristics. For example, a lesbian may be treated unfairly or harassed because she is a woman and also because of her sexual orientation.

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There are some instances of lawful discrimination

When is discrimination not unlawful?
It is not unlawful for discrimination to occur in certain circumstances.

General religious exceptions

Religious bodies and religious schools are able to discriminate against you in certain circumstances.

Religious schools and other religious bodies can set rules that may exclude people on the basis of sexual orientation, lawful sexual activity and gender identity when they do so in order to conform with the doctrines, beliefs or principles of the religion or when it is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.  For example, a Catholic school may require a religious instruction teacher to hold Catholic beliefs.

The term ‘reasonably necessary’ requires an objective assessment of whether the discrimination is necessary.

However, religious bodies and religious schools are not able to discriminate against you if you are associated with someone who is Gay, Lesbian, Bisexual, Transgender, Intersex or Queer.

In addition, a person with religious beliefs is permitted to discriminate against you due to your gender identity, sexual orientation or lawful sexual activity if that discrimination is reasonably necessary for that person to comply with the doctrines, beliefs or principles of their religion.  What constitutes the doctrines, beliefs or principles is likely to be interpreted strictly.

Schools

Schools, colleges and other educational authorities may set and enforce reasonable standards of dress, appearance and behaviour for students. For example, a school may require its students to wear its prescribed girls and boys uniform despite the gender identity of its students, although it will depend on the circumstances whether these standards are considered reasonable.

Employment

Discrimination in employment will not be against the law in certain circumstances, for example:

  • A person seeking to hire someone to provide domestic or personal services within their own home can set rules in selecting the characteristics of whom to hire.
  • Where it is necessary for the authenticity or credibility of a dramatic performance, entertainment, photographic or modelling work.
  • Where it is a genuine occupational requirement, such as being required to wear safety clothing that may not reflect a person’s gender expression.

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Is it unlawful if…?

What happens when someone discriminates by mistake?
The law also prohibits discrimination where a person is presumed or perceived to have a certain characteristic even if they do not. For example, if a person is mistakenly believed to be gay and discriminated against on this basis this would be unlawful.

Does the law protect the family and friends of victims of discrimination and harassment?
The law also protects people who are associated with someone who is Gay, Lesbian, Bisexual, Transgender, Intersex or Queer. For example, if a child is treated unfairly by their school because they have lesbian parents this could be unlawful discrimination.

What happens if someone ‘doesn’t mean it’?
It does not matter what the motive is of the person when they discriminate. Similarly, it is not relevant whether they act alone or with other people, or whether the discrimination is a positive act or a failure to do something to ensure equal treatment.

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The law protects you to speak up

How are you protected?
You are protected by the law when you speak up about your legal rights, or make a complaint or help another to make a complaint under the law. If, as a result of you speaking up, you are disadvantaged (that is, you are treated badly such as being excluded, harassed or treated unfairly), that is victimisation and it is against the law.Victimisation is a separate right under discrimination laws. You do not need to have made a complaint under discrimination laws specifically in order to challenge being victimised. For example, if you made an internal complaint for unfair treatment or discrimination in your work place, and you subsequently lost the chance of a promotion or are dismissed due to making that complaint, then you have a legal right to challenge that lost opportunity or dismissal because victimisation is unlawful.

Making a complaint
If you suffer harassment or discrimination, there are several places you can go to take action by making a complaint.

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Further protection in the workplace

Workplace Discrimination – your rights under Federal Workplace Laws
You also have a number of general protections under federal workplace laws which protect you from discrimination as a result of your sex or sexual orientation.It is against the law for an employer to discriminate between an employee (or between a prospective employee) and the other employees of the employer.  This includes threatening to discriminate and organising any such discrimination.  Victimisation is also prohibited under federal workplace laws.It is not unlawful for an employer to discriminate if the reason is due to the inherent requirements of the particular job position. It is also not unlawful if the employer is a religiously affiliated institution that discriminates in good faith and in accordance with the beliefs and teachings of their religion.

If you feel that you have been discriminated against at work, or if you feel that you have been victimised at work, you can also make a complaint to the Fair Work Ombudsman.  The Fair Work Ombudsman encourages you to have first brought up the issue with your employer.

If you are suffering discrimination or harassment at work, you can contact the Fair Work Ombudsman.

Workplace bullying

There are additional protections under occupational health and safety laws if you are experiencing homophobic, transphobic or biphobic harassment or bullying at work

Employers have a duty to provide you with a safe and healthy workplace under occupational health and safety law. The organisation you work for should have systems in place to prevent bullying and respond to allegations of bullying.  If you are an independent contractor or an employee of independent contractors and experience bullying at a workplace, you may still have a right against an employer of that workplace if that employer has control over the workplace.

What is workplace bullying?

Workplace bullying is repeated, unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. In most cases, this behaviour is persistent and happens over a period of time.

Bullying is behaviour that offends, humiliates or intimidates. It can be a range of things including verbal abuse, jokes, excluding or isolating employees, spreading malicious gossip or rumours.  Bullying can also be discrimination if it is for an unlawful reason, for example, on the basis of your sexual orientation.

It is not bullying for your employer to provide legitimate feedback, require you to meet set goals and targets, or undertake reasonable performance management.

What is the difference between harassment, discrimination and bullying?

There is a good deal of overlap between workplace bullying and harassment.  Bullying and harassing behaviour may also amount to discrimination if the reason for the behaviour is linked to a person’s protected attribute and the conduct happens in the workplace, or in some other area of public life that is covered by the anti-discrimination laws.

Harassment is any action, gesture or comment that makes a person feel offended, humiliated or intimidated. Bullying is a form of harassment. Harassment also includes homophobic jokes and comments, victimisation, mocking or shouting at a co-worker.

If you are feeling unsafe at work, you can lodge a complaint.

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Further protection against crime

Protection against criminal conduct
Certain types of conduct against you on the basis of your sexual orientation or gender identity can be a crime.

Serious Bullying

Serious bullying, including workplace bullying, is a criminal offence under Victorian law. Bullying that is serious can be prosecuted under the Crimes Act 1958 (Vic) as an additional type of stalking. Individuals can be held personally liable, and face criminal charges and possible sentences of up to 10 years.

Relevant to bullying behaviour, the criminal laws prohibit:

  • making threats to the victim;
  • using abusive or offensive words to, or in front of, the victim;
  • performing abusive or offensive acts in the presence of the victim;
  • directing abusive or offensive acts towards the victim;
  • acting in a way that could reasonably be expected to cause physical; or mental harm to the victim, including causing the victim to self-harm (such as suicide).

Intervention Orders

If you are a victim of criminal bullying or stalking you can get an intervention order even if the bully has not yet been convicted of a criminal offence. All that is needed is for a court to be satisfied on the balance of probabilities that the person has engaged in criminal conduct (bullying or stalking) and is likely to continue to do so or to do so again. Intervention orders can, for example, order the bully not to approach your workplace or contact you.

Prejudice motivated crime

Prejudice motivated crime, sometimes referred to as “hate crime”, is a criminal act which is wholly or partly motivated by prejudice or hatred towards a person or a group because of a particular characteristic such as sexual orientation and gender identity.

Crimes motivated by prejudice may take many forms, including: physical assault, damage to property, harassment, verbal or written abuse, threats and offensive graffiti.

Victoria’s laws recognise the seriousness of “hate crime”. If a crime is identified as a “hate crime”, Victorian courts must have regard to this when sentencing an offender in relation to that crime.  More serious sentences may be given to an individual who commits a “hate crime”.

The Victorian Police takes prejudice motivated crime seriously and encourages reporting of such crimes for a safer community. Report to Crime Stoppers confidentially with any information you have on the crime, and if you are the victim – report to your nearest police station.

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For contacts that can provide further information regarding your rights, Find Support.