Sporting chance for all - Equality for transgender people in sport and work

The recent media coverage of a high profile rugby union player reporting the use of derogatory slurs on-field highlights the issue of discrimination in sport.  This incident is timely as, in January, the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) released a new guideline titled Transgender People and Sport.  This follows the release of the previous guideline, Transgender People at Work (updated in July 2014).

The Equal Opportunity Act 2010 (EO Act) protects transgender and intersex people from discrimination on the basis of their gender identity in a number of areas of public life.  In addition to sport and work, these include education, provision of goods and services, accommodation and clubs.

New guidelines

The two guidelines outline legal obligations under the EO Act in relation to sport and work, as well as practical information about gender identity issues, including lists of useful terms, case studies and decision-making steps.  While not legally binding, a court or tribunal may consider whether the guidelines have been complied with when hearing a discrimination complaint.

Discrimination on the basis of gender identity

The EO Act protects transgender and intersex people from both direct and indirect discrimination on the basis of their gender identity (ss 6(d) and 7).  Direct discrimination occurs when a person is treated, or proposed to be treated, unfavourably because of their gender identity (s 8(1)).  Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed, or proposed to be imposed, which has, or is likely to have, the effect of disadvantaging a person with a particular gender identity (s 9(1)).

It is also unlawful to ask a person to specify their gender identity where there is no legitimate, non-discriminatory reason for needing this information (s 107).

'Gender identity' is defined in s 4 of the EO Act as the identification by a person of one sex (or of indeterminate sex) as a member of another sex on a genuine basis.  This identification could be by:

• assuming characteristics of the other sex, whether by medical intervention, style of dressing or otherwise; or
• by the person living, or seeking to live, as a member of the other sex. 

The rights of transgender and intersex people are also protected under the Charter of Human Rights and Responsibilities Act 2006.

Transgender people and sport

This guideline is aimed at sporting organisations, clubs and staff.  It will also be useful for schools and universities.  The guideline explains that it is unlawful to discriminate against a person on the basis of their gender identity by failing to select them or excluding them from participating in sporting teams and activities, unless a relevant exception applies (s 71).  It also explains that it is against the law to discriminate against a person on the basis of their gender identity in club membership, including sporting clubs (ss 64 and 65), although it may be lawful for clubs to limit membership to a particular sex (s 68).

Transgender people at work

This guideline is aimed at all employers, and is relevant to all government departments and public entities.  VEOHRC has also produced resources for developing a transition plan for transgender employees as well as a policy template.  These documents will be useful for human resources professionals and anyone with responsibility for interviewing or recruiting new employees.

The guideline explains that it is unlawful to discriminate against job applicants and employees because they are transgender (ss 16 and 18).  The only exception is if there is a 'genuine occupational requirement' for employees to be of a particular sex (s 26).

If you are in the Victorian Government and would like further information about your responsibilities under the Equal Opportunity Act 2010, please contact:

Catherine Roberts
Managing Principal Solicitor
8684 0247
catherine.roberts@vgso.vic.gov.au

David Catanese
Principal Solicitor
9032 3040
david.catanese@vgso.vic.gov.au