What it does
Mechanically, this Act amends the Sex Discrimination Act 1984 and a small set of other Acts to add sexual orientation, gender identity and intersex status as protected grounds and to broaden the concept of marital status. Schedule 1 contains the operative amendments to the Sex Discrimination Act 1984, inserting new sections that define and make unlawful discrimination on the grounds of sexual orientation (new s 5A), gender identity (new s 5B) and intersex status (new s 5C). The Schedule also inserts a new, broader definition of “marital or relationship status” and replaces many occurrences of “marital status”, “sexual preference”, “opposite sex” and equivalent terms throughout the statute with updated language (see, for example, items 1, 6, 7, 9, 12, 16, 36, 42 and many others).
The Act supplies express definitions for the new grounds and related terms. Sexual orientation is defined as attraction to same sex, different sex, or both (item 12). Gender identity is defined to include gender‑related identity, appearance, mannerisms or other gender‑related characteristics, whether by medical intervention or not (item 6). Intersex status is defined by physical, hormonal or genetic features that are neither wholly female nor wholly male, a combination of female and male, or neither female nor male (item 7). “Marital or relationship status” is enumerated to list single, married, divorced, de facto partner and related positions (item 9). The term “de facto partner” is given the meaning in the Acts Interpretation Act 1901 (item 4), and older definitions such as “de facto spouse”, “man” and “woman” are repealed (items 5, 8, 14).
The amendments also create targeted, text‑level carve outs and clarifications. New subsection 23(3A) excludes accommodation provided by a religious body in connection with the provision of Commonwealth‑funded aged care from a particular paragraph that otherwise restricts discriminatory accommodation practices (item 39A). New s 49B(2) narrows the application of the religious bodies exemption in s 37 by excluding acts or practices of religious bodies that are connected with the provision of Commonwealth‑funded aged care, so long as those acts are not connected with employment (item 49B). The Schedule defines “Commonwealth‑funded aged care” by reference to the Aged Care Act 1997 and to grants under Chapter 5 of that Act (item 3A). The amendments expressly preserve conduct done in direct compliance with the Marriage Act 1961 (new s 40(2A)) and similarly preserve conduct done in direct compliance with any law prescribed by regulation for that purpose (new s 40(2B)) (item 52). A record‑keeping and information request clause (new s 43A) states that a request or record is not unlawful merely because it does not allow a person to identify as neither male nor female (item 60).