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Sex characteristics

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.

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What is sex characteristic discrimination?

Sex characteristic discrimination is when someone treats you unfairly, including bullying 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:

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.

Under the Equal Opportunity Act, employers have a positive duty to eliminate discriminationsexual 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 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:

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

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.

Proud, visible, safe – May 2019

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The Victorian Equal Opportunity and Human Rights Commission acknowledges that we work on the traditional lands of the Wurundjeri people of the Kulin Nation. We also work remotely and serve communities on the lands of other Traditional Custodians.

We pay our respects to their Elders past and present.