Gay, Lesbian and Transgender Discrimination

Freedom from discrimination is a basic human right. In New South Wales the Anti-Discrimination Act 1977 (NSW) makes it unlawful in some circumstances for anyone to discriminate against a person, or a relative or associate of that person, on the basis of their actual or presumed homosexual or transgender status. Homosexual and transgender vilification is also unlawful in New South Wales.

What is discrimination?

Discrimination occurs when someone treats you unfairly because you have a particular characteristic – for example, because you are gay, lesbian or transgender. Discrimination can also occur when you are harassed because you are gay, lesbian or transgender.

When is discrimination unlawful?

Gay men, lesbians and transgender people often experience discrimination. However, not all instances of discrimination are unlawful.  For discrimination to be unlawful it must occur in relation to at least one of the following situations:

		When you apply for a job, while you are working, or when you are leaving a job;
		When you get, or try to get, goods or services – for example, from restaurants, shops, hotels, hospitals, tradespeople, professionals, government departments, etc;
		When you apply to study, or while you are studying, in any state school, college, TAFE or university;
		When you try to rent, or are renting, accommodation;
		When you try to enter, or join, a registered club.

Some organisations are exempt from the provisions of the Anti-Discrimination Act 1977 (NSW). These include, charities, religious and voluntary bodies, and aged housing accommodation providers. There are also specific exemptions to transgender discrimination in the areas of sports and superannuation.

If you are unsure whether your situation is covered by the Anti-Discrimination Act 1977 (NSW) please contact the Anti-Discrimination Board (see contact details below) or the Inner City Legal Centre for assistance.

What is homosexual and transgender vilification?

Homosexual and transgender vilification is any public act that could encourage other people to hate, or have serious contempt for, or severely ridicule, you or a group of people, because of your actual or presumed homosexual or transgender status.

However, it is important to note that public acts, such as a speech or statement made ‘reasonably and in good faith’ for academic, artistic, scientific, research or ‘public interest’ purposes, or a fair media report of someone else’s act of vilification, will not amount to vilification under the Anti-Discrimination Act 1977 (NSW).

What can I do if I think I have experienced unlawful homosexual or transgender discrimination or vilification?

		If you are uncertain about whether you have experienced unlawful discrimination or vilification, you can contact the Anti-Discrimination Board to check on your rights. You can also contact the Inner City Legal Centre to arrange an appointment with a solicitor to discuss your situation. Advice can be provided over the telephone to people who live outside Sydney.
		If it seems that you have experienced unlawful discrimination or vilification, you can try discussing it with the responsible person or organisation, in an attempt to address the problem. This may include speaking with your trade union if it happened at work.
		If this is not appropriate or is unsuccessful, you can make a formal complaint to the Anti-Discrimination Board (see contact details below).

How do I make a complaint to the Anti-Discrimination Board?

If you decide to make a formal complaint to the Anti-Discrimination Board you must do the following:

		Lodge your complaint within 12 months of the act of discrimination or vilification.
		Lodge your complaint in writing. The Anti-Discrimination Board has a complaint form that you can complete or you can simply write a letter. If you need assistance with your written complaint you can contact the Anti-Discrimination Board (see contact details below) or Inner City Legal Centre.

What will the Anti-Discrimination Board do with my complaint?

		The Anti-Discrimination Board will send the other party a copy of your complaint and ask them to respond in writing. They will generally arrange a meeting with the person or organisation about whom you are complaining, and try to reach a resolution or settlement. An officer from the Anti-Discrimination Board will act as the mediator in meetings.
		A settlement may include, for example, an apology, compensation, attendance at training courses about harassment, reprimand or transfer to another position.

What happens if the Anti-Discrimination Board does not resolve my complaint?

If you are not able to successfully conciliate your complaint at the Anti-Discrimination Board, it may be possible to apply to have your matter heard in the Equal Opportunity Division of the Administrative Decisions Tribunal, where legally binding orders may be made. 

HIV/AIDS vilification

The above information concerning unlawful homosexual and transgender vilification also applies to a person’s actual or presumed HIV/AIDS status. For further information please contact Inner City Legal Centre or the Anti-Discrimination Board (see contact details below).

Useful Contacts

		Inner City Legal Centre – www.iclc.org.au
		Anti-Discrimination Board – www.lawlink.nsw.gov.au/adb
		Gay and Lesbian Rights Lobby – www.glrl.org.au
		Kingsford Legal Centre – www.kingsfordlegalcentre.org
		HIV/AIDS Legal Centre – www.halc.org.au
		Legal Aid Commission of NSW – www.legalaid.nsw.gov.au
		The Gender Centre – www.gendercentre.org.au/
		LawAccess – www.lawaccess.nsw.gov.au
		Understanding Your Legal Rights - A guide for lesbians and gay men in NSW – www.lawlink.nsw.gov.au/samesex

Acknowledgements:The Law Handbook, 9th edition (Redfern Legal Centre Publishing); Anti-Discrimination Board website; Gay and Lesbian Rights Lobby website.

Disclaimer: The information contained in this fact sheet is only intended as a guide to the law and should not be used as a substitute for legal advice. If you have any further questions we strongly suggest you seek legal advice.

Note: This information applies to people who live in, or are affected by, the law as it applies in the State of New South Wales, Australia.

The information contained in this factsheet is current as at 30th June 2005.