The law relating to homophobic, biphobic and transphobic harassment
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).
[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.
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.
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.
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.
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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.
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, 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.
Discrimination in employment will not be against the law in certain circumstances, for example:
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.
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.
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:
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.
For contacts that can provide further information regarding your rights, Find Support.