Gender identity discrimination and vilification

Gender identity discrimination is when someone treats you unfairly, including bullying you, because of your gender identity. Under the Equal Opportunity Act 2010, gender identity protects your right to identify as a gender that may or may not be the same as the sex you were designated with at birth.

Gender identity includes people’s personal sense of their body, and other expressions of gender including dress, speech, mannerisms, names, pronouns or other personal references. It may but does not have to involve medical intervention.

It’s against the law for people to be discriminated against because of gender identity.

People can also face discrimination based on physical features related to sex. Sex characteristics  discrimination is when a person has been treated unfairly or bullied because of their physical features relating to their sex, including people with physical features related to intersex variations. This is different from gender identity discrimination which refers to a person’s gender related identity.

Examples of gender identity discrimination 

• Refusing to call someone by their preferred name or use their preferred pronouns. Genuine mistakes are not against the law but it may be discrimination if it is done in a manner that indicates hostility.
• A clothes shop not allowing a transgender person to use the change rooms that align with their gender identity.
• Not serving a gender diverse person in a restaurant because of the way they look.
• A landlord or letting agency restricting a transgender person’s use of facilities that other tenants have full access to, e.g. kitchen facilities or a communal garden.

Discrimination is against the law if it happens in an area of public life such as:

• work 
• school, TAFE or university 
• a club or sporting organisation 
• shops and restaurants 
• aged care, hotels or rental properties. 

Under the Equal Opportunity Act, duty holders like employers, schools, and goods and service providers have a positive duty to make sure you don’t face discrimination, sexual harassment and victimisation.

It is also against the law to victimise a person, which means treat them badly, because they have made complaint about discrimination or helped someone else make a complaint.

You can make a complaint

Get help from the Victorian Equal Opportunity and Human Rights Commission.

You can make a complaint to us if you think you have experienced:

• discrimination 
• sexual harassment 
• victimisation 
• vilification. 

If you wish, someone else can make a complaint for you. Find out how we help people resolve complaints.

We can also give you information about your rights.

Change or suppression (conversion) practices 

The  Change or Suppression (Conversion) Practices Prohibition Act 2021  bans practices that aim to change or suppression someone’s gender identity, or sexual orientation.

Change or suppression practices can be religious, or faith based, and can also include counselling, psychotherapy, and support groups.

Read about how this law can protect your right to be yourself, and how to make a report under this law. 

While a person is responsible for their own unlawful behaviour, employers can also be held responsible. 

Under the Equal Opportunity Act, employers have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.

Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.

Organisations should also put measures in place to ensure that complaints are responded to swiftly and appropriately when they do arise.

The positive duty applies to employers of all sizes, regardless of whether they are a major company or a small cafe, and covers all types of workers:

• full-time, part-time and casual employees
• agents and contract workers
• trainees and apprentices.

It applies to all stages of employment, including:

• advertising jobs and recruitment
• returning to work after injury, illness or pregnancy
• dismissal and retrenchment. 

Examples of gender identity discrimination in the workplace 

• Refusing to call someone by their preferred name or use their preferred pronouns.
• Refusing to let someone use the toilets that align with their gender identity.
• Passing over someone for a job or promotion because of their gender identity.

The Equal Opportunity Act 2010 protects you from vilification, more commonly known as hate speech or hateful behaviour because of your disability, gender identity, race, religious belief, sex, sex characteristics and sexual orientation, or personal association with someone who has one of these protected characteristics.

Vilification is:

1. encouraging hatred in others– incitement – behaviour likely to incite hatred in others because of a person or group’s protected attribute.
2. hate speech or hateful behaviour that a reasonable person from the target group is likely to consider to be hateful. The basis for the hateful behaviour must be because of a person’s protected attributes.

For either type of vilification, the behaviour must be public, whether online, in person, verbal or written.

If comments, jokes or other acts related to gender identity don’t meet the definitions of vilification, they could still be the basis for a complaint of discrimination if they take place in one of the areas of public life covered by the Equal Opportunity Act.

You may complain about vilification based on more than one attribute   

People can often be vilified because of more than one attribute they hold. For example, a nonbinary person of colour who is vilified because of their gender identity and race.

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example, discrimination is not against the law if there is a real risk to someone’s health, safety or property.

There are also exceptions in the Equal Opportunity Act that  permit vilifying conduct in certain circumstances. For example, vilification may not be against the law when it is reasonable and done in good faith in the course of a performance.

Find out more about exceptions.

Every Victorian has the right to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.

Victoria’s Charter of Human Rights and Responsibilities contains 20 basic rights that promote and protect the values of freedom, respect, equality, and dignity.

The Victorian Government, local councils and other public authorities must always consider Charter rights, including the right to equality, when they create laws, develop policies and deliver their services.

Find out more about your human rights under the Charter and what to do if you think they have been breached.