Everyone is equal and we should all be treated the same. It is against the law for someone to treat you unfairly because of your physical features related to your sex or your variations in sex characteristics.
What is sex characteristic discrimination?
Sex characteristic discrimination is when someone treats you unfairly or bullies you because of your physical features related to your sex. This type of discrimination is experienced by people born with variations in sex characteristics – people with intersex variations.
A person with intersex variation is born with atypical natural variations to sex characteristics such as variations in chromosomes, hormones or anatomy. Intersex traits are a natural part of human bodily diversity.
Sex characteristics include:
- genitalia and other sexual and reproductive parts
- chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.
Examples of sex characteristic discrimination
- A health professional refusing to treat someone with an intersex variation because the person’s sex characteristics make the health professional uncomfortable
- A sportsperson or student not being given access to a changeroom because their body is too masculine or too feminine
- Not hiring a person because of their intersex variation, which was identified in their application or medical history
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.
People who work in these areas have a positive duty to make sure you don’t face discrimination.
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.
Sex characteristic discrimination at work
While a person is responsible for their own unlawful behaviour, employers can also be held responsible.
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 must 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.
An example of sex characteristic discrimination at work
Samira, an accountant, has an intersex variation. Her colleague recently had a child who was born with an intersex variation, and Samira confided with her colleague about her own variation.
Their conversation was overheard by another colleague who has since been making inappropriate comments and teasing Samira. Samira now feels uncomfortable at work and she is angry and upset.
Examples of sex characteristic discrimination
Discrimination in healthcare
Hamish is a 16-year-old who was born with an intersex variation. Hamish goes to see a psychologist who asks a number a questions relating to Hamish’s life. Hamish explains that they do not identify as being male or female. The psychologist, pushing their own views onto Hamish, insists that Hamish must be male because of Hamish’s variation. This conversation makes Hamish incredibly upset and they start to question whether there is something wrong with them.
Viv is born with an intersex variation and Viv’s parents would like to understand what their options are, including the potential implications of delaying a surgical intervention. Viv’s parents seek information from the doctor. The doctor refuses to provide any information to the parents because they think it’s wrong to delay immediate surgical intervention.
Discrimination in education
Ara is a 10-year-old who has an intersex variation. Ara plays sports at school including soccer. One day at school competitions Ara gets hurt on the soccer field. The school’s nurse comes to Ara to help with the wound and says, “maybe you should play with the girls from now on, that way you won’t get hurt”. This leaves Ara confused and wondering whether what the nurse said was right.
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 these rights 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.