It’s against the law to discriminate against you – treating you unfairly – because of your gender identity. Gender identity discrimination happens when a person is treated unfavourably because of their gender-related identity, appearance, mannerisms or other gender-related characteristics.
What is gender identity discrimination?
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.
People can do this by living, or seeking to live, as a member of a particular sex or assuming characteristics of a particular sex. This could be through:
- the way they dress
- the way they speak or their mannerisms
- a name change
- their pronouns
- medical intervention, such as hormone therapy or surgery.
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.
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 someone 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 (such as kitchen facilities or a communal garden).
How does the law protect me?
Discrimination is against the law if it happens in an area of public life such as:
- 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 (such as employers, schools, and goods and service providers) have a positive duty to eliminate discrimination, sexual harassment and victimisation in these areas, as far as possible.
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:
If you wish, someone else can make a complaint for you. Find out how the Commission helps 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.
Gender identity discrimination at work
16% of the complaints about gender identity discrimination we receive are work related (Annual Report 2020-21).
Two thirds of these complaints were related to the provision of goods and services (66.6% in 2020-21).
In previous years, over a quarter of these complaints have been work related. The COVID-19 pandemic has impacted where people are experiencing this type of discrimination.
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.
To ensure they are complying with the positive duty, 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.
Are there any exceptions to the law?
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.
Find out more about exceptions.
My human rights under the Charter
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.