The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor. The two accused persons had conducted a traditional engagement ceremony, or chinkhoswe. They held themselves out to be husband and wife, and the second accused person identified as a woman but the court consistently referred to her as a man. The court found that both accused committed the crimes charged. In sentencing the two accused persons to the maximum punishment available, the court cited their perceived lack of remorse and their attempt to “seek heroism […] in public, and […] corrupting the mind of a whole nation with a chinkhoswe ceremony.” The court explicitly described the sentences of 14 years imprisonment with hard labor as deterrents so that the public could be “protected from others who may be tempted to emulate their [horrendous] example.” In closing, the court stated, “let posterity judge this judgment.” According to multiple news sources (e.g., the BBC), the President of Malawi pardoned both accused persons and they were subsequently released from prison with a warning not to resume their relationship.
Women and Justice: Keywords
R v. Soko and Another Chief Resident Magistrate's Court (2010)
戸籍登録変更に関する異議申立書：28212731 (Appeal Concerning an Application for Permission to Revise a Family Registration, ID 28212731) 最高裁第三小法廷（2013年）(Third Petit Branch of the Supreme Court) (2013)
Person X1 transitioned from female to male. X1 registered as a male and married a woman, X2, in 2008. In 2009, X2 bore a child. In 2012, X1 applied to have the family registry reflect that X1 was the child’s father and that the child was born while X1 and X2 were married. The ward mayor in charge of changes to family registries held that there was a problem with the application because Article 774 of the Civil Law was inapplicable to the child’s situation as the child was not related by blood to X1. X1 did not comply with the ward mayor’s request to fix the application, so the ward mayor filled in the family registry for the child with a blank for father and a note that the child was X2’s oldest son. X1 and X2 filed suit to have X1 added as the child’s father on the grounds that the child should be presumed to be a “legitimately” born child based on Article 772 of the Civil Law. The Supreme Court held that the child should be presumed to be the son of X1, overruling the lower court and the ward mayor’s decision. The court reasoned that under Article 3.1 of the Gender Identity Disorder Law, a transgender man should be treated for all purposes under the law as a man. The court held that this includes being able to marry and have a “legitimate” child. Following this decision, the Ministry of Justice issued a notification on 27 January, 2014 directing that this procedure be followed for any similarly situated families. Subsequently, the state changed the family registry for 45 such couples to reflect that both parents are their children’s parents.
平成25年（許）5 (2013 (Kyo) No. 5) 最高裁 (Supreme Court of Japan) (2013)
The plaintiff-husband, who transitioned from female to male, and the plaintiff-wife requested the local public agency to amend their family registry to state the plaintiff-husband as the father of their child. The child was born by artificial insemination and had no blood relationship with the plaintiff-husband. The Supreme Court determined that, since the child was conceived by the plaintiff-wife during marriage, he is presumed to be a child of the plaintiff-husband under the Civil Code, and ordered the family registry to be amended.
González Pino, Alejandra v. Ortúzar Novoa, Graciela y otro (Case Nº 38238-2016) Supreme Court (2017)
The plaintiff, a councilwoman in the Comune of Lampa, identified as a woman and presented herself to society as a woman, filed a discrimination complaint against the defendant, claiming arbitrary discrimination for failure by the Mayor, as representative of the State, to respect her gender identity. She sued, claiming a violation of Anti-Discrimination Law No. 20.069 (“the Law”). The court, on appeal, reversed the trial court judgment and imposed a fine, finding that the Mayor of the Comune of Lampa had arbitrarily discriminated against plaintiff by failing to respect her gender identity as a woman. The court held that arbitrary discrimination means any distinction, exclusion, or restriction made by agents of the State or individuals that lacks reasonable justification, and that causes deprivation, disturbance, or threat in the legitimate exercise of the fundamental rights established in the Constitution or international treaties on human rights ratified by Chile and in effect, including gender identity as defined by the LGBTI Unit of the Inter-American Commission of Human Rights, which includes transgender identity. Therefore, the right to an identity is constitutionally protected, including the right to identify as lesbian, gay, bisexual, transgender, and intersexual. Any deprivation, disturbance or threat to such identifying rights constitutes an arbitrary discrimination within the meaning of Article 2 of Law No. 20,609.
La demandante, vecina de la comunidad de Lampa, identificada como mujer y presentada a la sociedad como mujer, interpuso una denuncia de discriminación contra la imputada, alegando discriminación arbitraria por incumplimiento del Alcalde, como representante del Estado, de respetar su identidad de género. Ella demandó, alegando una violación de la Ley contra la Discriminación No. 20.069 (“la Ley”). El tribunal, en apelación, revocó la sentencia del tribunal de primera instancia e impuso una multa, al considerar que el alcalde de la comuna de Lampa había discriminado arbitrariamente a la demandante al no respetar su identidad de género como mujer. El tribunal sostuvo que “discriminación arbitraria” significa toda distinción, exclusión o restricción realizada por agentes del Estado o personas que carece de justificación razonable, y que ocasiona privación, alteración o amenaza en el legítimo ejercicio de los derechos fundamentales consagrados en la Constitución o en las normas internacionales, tratados de derechos humanos ratificados por Chile y en vigencia, incluida la identidad de género según la definición de la Unidad LGBTI de la Comisión Interamericana de Derechos Humanos, que incluye la identidad transgénero. Por lo tanto, el derecho a la identidad está protegido constitucionalmente, incluido el derecho a identificarse como lesbiana, gay, bisexual, transgénero e intersexual. Cualquier privación, alteración o amenaza a tales derechos identificativos constituye una discriminación arbitraria en el sentido del artículo 2 de la Ley N ° 20.609.
Case No. GRA 2017/56 – The Swedish Equality Ombudsman v. “the Foundation”: Decision from the Swedish Equality Ombudsman regarding gender -based separation on school bus and in gymnastics classes Diskrimineringsombudsmannen (Discrimination Ombudsman) (2017)
Five notifications regarding discrimination of students by a Foundation were made to the Equality Ombudsman after the broadcast of a TV program. In the program, the students of a school owned by the Foundation were separated by gender on the school bus. The Equality Ombudsman’s investigation noted that a gender-based separation was also made in the gymnastics classes. According to Chapter 2 Section 5 of the Swedish Discrimination Act, it is prohibited for an education provider or an employee of the provider to discriminate against any child or student that participates in the school’s operations. For gender-based separations not to constitute discrimination, either the activities of the groups must be equivalent, without any student finding it disfavoring to be separated by gender, or the separation must be limited to moments where the students’ gender is of such importance that they are not in a comparable situation. The Equality Ombudsman ruled that the separation of the students in the gymnastics classes constituted a risk of one or more students being discriminated against for gender and transgender identity or expression. However, the separation on the school bus was not found to constitute a risk of violation of the Discrimination Act.
Case No. 3488-17 – A. v. the Swedish National Board of Health and Welfare Kammarrätten Dom i Stockholm (Court of Appeal in Stockholm) (2017)
The court ruled that a person who was designated male at birth, but who had undergone sex reassignment therapy and who had changed their legal identity to female has the right to change their legal identity back to male, despite having female genitalia. The court further held that Section 1 of the Swedish Gender Identification Act can be applied in this situation (i.e., where a person would like to change his or her legal identity back to a previous legal identity after having undergone sex reassignment therapy). Section 1 of the Swedish Gender Identification Act provides the test for changing one’s gender identity as follows: (i) the person feels that they belong to the opposite sex, (ii) the person has been acting in accordance with the desired gender identity, (iii) the person can be expected to live with the chosen gender identity in the future, and (iv) the person is above 18 years old. The Swedish National Board of Health and Welfare and the Stockholm Administrative Court denied the petition, arguing that due to the applicant’s previous sex change it cannot be expected that the applicant will continue to live with the chosen identity. On appeal, the Stockholm Administrative Court of Appeal found (a) that it was possible to apply Section 1 of the Swedish Gender Identification Act in a case where a person would like to change his or her legal identity back to a previous legal identity, and (b) that the fact that the applicant had previously gone through a sex change did not indicate that the now-chosen gender identity will not be maintained in the future. Therefore, the Court of Appeal allowed the change of identity.
KI 108/18 Gjykata Kushtetuese (Constitutional Court) (2018)
The applicant was registered as female at birth, but has always identified himself as male. He lived and appeared as a man in all areas of life, and had begun hormonal treatment to transition. The applicant filed a request with the Civil Status Office to change his name and gender marker to reflect his male gender identity, but the request was rejected. He appealed the decision to the Civil Registration Agency, which rejected the appeal on the grounds that the applicant provided no evidence that his current name prevented his integration in society, and no medical report supporting his request for a change of his gender marker. The applicant filed a claim with the Basic Court, and, only one week later and before a decision was rendered, referred the matter to the Constitutional Court. The applicant alleged the Civil Registration Agency’s decision violated his fundamental rights and freedoms, guaranteed by Articles 23 (Human Dignity), 24 (Equality Before the Law), and 36 (Right to Privacy) of the Constitution of Kosovo, and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights. The applicant requested to be exempted from the legal obligation to exhaust all legal remedies before seeking a constitutional review on the grounds that the regular courts’ legal remedy would not be effective or sufficiently certain because of his special circumstances and the length of the proceedings. The Constitutional Court surveyed foreign constitutional courts via the Venice Commission for their respective relevant case law, confirming the general requirement for an applicant to exhaust his/her legal remedies before seeking constitutional review. The court noted the existence of a very similar and recently decided case, in which a person sued the Civil Status Office and Civil Registration Agency for their refusal to grant his request to change his name and gender marker from female to male after a successful gender reassignment surgery. The Basic Court ruled for the applicant and ordered the changes made, and the decision was upheld by the Court of Appeals. The Constitutional Court therefore determined that the regular courts could furnish an effective and sufficiently certain legal remedy for the applicant. Moreover, the court noted that the applicant was not seeking review of an already lengthy court proceeding, but merely of the possibility of one, and in any event the Basic Court and Court of Appeals disposed of the above mentioned precedent in reasonable time. Accordingly, the Constitutional Court ruled the applicant’s referral inadmissible because it was premature. (Also available in Srpski and English.)
Khaki v. Rawalpindi Supreme Court of Pakistan (2009)
The Supreme Court of Pakistan considered the social status and injustices caused to the transgender population. The Court noted that under the Constitution of Pakistan, transgender individuals are entitled to enjoy constitutional rights like every other citizen of Pakistan. Over the years, transgender individuals in Pakistan have been deprived of inheritance, other property rights, voting rights, education, and employment due to the stigma and exclusion they have suffered. The Court directed the National Database and Registration Authority to adopt a strategy for recording exact status in the electoral list and the Federal and Provincial Governments to ensure that transgender individuals receive childhood education. The Court directed the Chief Secretaries/Commissioners to consult with the Social Welfare Department to implement the order and prepare a policy that would allow transgender individuals to vote during elections.
Ação Direta de Inconstitucionalidade 4275 (Direct Action of Unconstitutionality) Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2009)
Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender originally included in their civil registry, without the presentation of psychological or medical evaluation, hormonal treatment, transition surgery, or any other medical procedure. The majority understood that no judicial authorization is necessary for the amendment, stating only a self-written report of the trans person is sufficient to change his/her legal name.
O Supremo Tribunal Federal – STF decidiu, por maioria de votos, que as pessoas transgêneros podem alterar seu prenome e sua classificação de gênero no registro civil, mediante auto-declaração, sendo desnecessária a apresentação de laudos psicológicos, tratamento hormonais ou procedimentos cirúrgicos ou de autorização judicial.
Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)
The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.
Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)
The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.
Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)
On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire. The police detained the Applicants for the entire weekend without explaining the charges against them. Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02. At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ. The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire. Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars). The loitering charges were eventually dismissed. The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case. SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress. The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel. They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution. Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution. The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims. The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic. The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.
Fabian v. Hospital of Central Connecticut United States District Court for the District of Connecticut (2016)
Plaintiff complained that the Hospital of Central Connecticut did not hire her to be an on-call orthopedic surgeon because she disclosed that she was a transgender woman. Defendant moved for summary judgment, which the court denied, citing that transgender discrimination is a cognizable claim under Title VII as sex-based discrimination.
Rosati v. Igbinoso Court of Appeals for the Ninth Circuit (2015)
Pro se plaintiff Rosati, a transgender female, was imprisoned in California and suffering from Gender Dysphoria. Prison officials refused to provide the medically necessary gender reassignment surgery. The prison officials denied the gender reassignment surgery on the recommendation of a physician’s assistant who had no experience in transgender medicine and in spite of the plaintiff attempting repeated self-castrations. The district court dismissed without leave to amend for failure to state a claim on which relief could be granted. The Ninth Circuit reversed the dismissal citing that the prison officials were deliberately indifferent to the serious medical need of the inmate and that such conduct was a violation of the Eighth Amendment right to be free from cruel and unusual punishment, and that a plausible claim for relief was stated.
Avendano-Hernandez v. Lynch Court of Appeals for the Ninth Circuit (2015)
Plaintiff was a transgender woman from Mexico who was subjected to sexual assault and rape by Mexican police and military throughout her life. In 2006, she was arrested in America for driving under the influence. In 2007 she was deported to Mexico. After suffering more mistreatment in Mexico, Avendano-Hernandez returned to the U.S. and appealed for asylum under the United Nations Convention Against Torture. She reentered the United States in May 2008 and was arrested three years later for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation office. Plaintiff applied for withholding of removal and relief under the Convention Against Torture but the immigration judge denied her request for failing to show that the Mexican government would more likely than not consent to or acquiesce in her torture, which was confirmed by the Board of Immigration Appeals. On appeal, the Ninth Circuit reversed the decision with respect to the Convention Against Torture application because it was enough for Avendano-Hernandez to show that she was subject to torture at the hands of local officials. Additionally, the immigration judge relied on recent anti-discrimination legislation; however, the judge did not consider the legislation’s effectiveness. Therefore, Plaintiff should be given relief under the Convention Against Torture.
Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)
The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.
NSW Registrar of Births, Deaths, and Marriages v. Norrie High Court of Australia (2014)
After undergoing a sex affirmation procedure, Norrie registered as “non-specific” with the NSW Registrar. After initially approving this registration, the NSW informed Norrie that the registration was invalid. The Administrative Decisions Tribunal of New South Wales agreed with this determination, and the Tribunal’s appeal panel dismissed Norrie’s appeal. At this point, Norrie appealed to the Court of Appeal of New South Wales, which remitted the matter to the Tribunal for determination of Norrie’s sex classification. The Registrar appealed to the High Court. The issue on appeal to the High Court was whether the NSW Registrar was in fact confined to registrations of “male” or “female,” which would preclude Norrie’s registration as “non-specific.” The High Court noted that the Transgender (Anti-Discrimination and Other Acts Amendment) Act of 1996, which amended the Births, Deaths, and Marriages Registration Act of 1995, recognized “ambiguities.” Furthermore, the Court pointed to its holding in AB v. Western Australia, where it stated that "the sex of a person is not ... in every case unequivocally male or female." On this basis, the High Court held that individuals do not have to affirmatively select “male” or “female” following a sex affirmation procedure, and may instead register as “non-specific” with the NSW Registrar.
Sweden’s Gender Recognition Act states that a person may be legally recognized as another gender provided that they: (i) over a long period of time have perceived that they belong to that gender, (ii) have presented in accordance with the chosen gender, (iii) are expected to live in accordance with the gender identity in the future, and (iv) are at least 18 years old. Applications for legal gender change are reviewed by the National Board of Health and Welfare (Sw. Socialstyrelsen) and their decision may be appealed in the Administrative Court. The requirement for sterility was removed from Sweden’s Gender Recognition Act on 1 July 2013.
The Discrimination Act (“DA”) promotes equality regardless of gender, sexual orientation, or any other identity by defining and prohibiting discrimination and sexual harassment. The DA provides anti-discrimination laws which state that as long as an individual is capable of performing the relevant task, or eligible to receive services, he or she may not be discriminated against based on any identity factors. Moreover, the DA provides that organization leaders are obligated to investigate and take measures to prevent future discrimination or harassment upon becoming aware of such potential discrimination or harassment. Finally, the DA provides immunity provisions for those who report behavior that violates the DA. The penalty for failing to fulfill obligations under the DA is an obligation to pay compensation for the discrimination suffered, decided by the Board against Discrimination, and subject to appeal by the payee.
Law No. 05/L-020 on Gender Equality promotes gender equality, by defining the relevant concepts, setting forth various measures to protect equal rights of genders, and specifying the institutions responsible for gender equality. The Law defines “woman” and “man” as including any person who considers oneself as such, and describes gender identity – which does not require medical intervention – as a “protected characteristic.” Direct and indirect gender discrimination are prohibited under the Law, including less favorable treatment of women for reasons of pregnancy, maternity, or sexual orientation, and gender-based violence. Harassment and sexual harassment are also forbidden, and whether a person refuses or surrenders to such behavior shall not be used as a basis for a decision affecting that person in a legal proceeding. The Law directs the Kosovo institutions to implement various general measures to achieve gender equality in Kosovo, including gender mainstreaming in all policies and legislation, gender budgeting in all areas, and ensuring recruitment and appointment are consistent with the requirement for equal representation of women and men. In areas where inequities exist, public institutions are further instructed by the Law to take temporary special measures to accelerate the realization of gender equality, including quotas, preferential treatment, hiring, and promotion. The Law in particular requires legislative, executive, and judicial bodies at all levels to adopt special measures until equal gender representation is achieved. The Law establishes an Agency for Gender Equality to support the implementation of the Law, and further mandates that all ministries and municipalities must appoint gender equality officials, and allocate sufficient resources from their budget, to implement the Law. Discrimination on bases including sex, pregnancy, or birth, is prohibited in employment matters including access to employment or training, and working conditions. In regard to education, the Law proscribes sex discrimination in access to education and scholarships, evaluation results, and attainment of degrees, and mandates the inclusion of gender equality education in school curricula at all levels. Persons who believe the principle of equal treatment has not been implemented in relation to them may initiate proceeding in accordance with the Law on Protection from Discrimination. Violations of the Law are punishable by fines of up to 700 Euros for individuals, and 900 Euros for legal entities. (Unoffocial English version available here.)
Equality Act (2010)
This Act is a comprehensive act that replaced several pieces of legislation, including the Sex Discrimination Act of 1975. In general, The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society, and provides equality provisions, including the following:the basic framework of protection against direct and indirect discrimination, harassment and victimization in services and public functions, work, education, associations and transport changing the definition of gender reassignment, by removing the requirement for medical supervision protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic clearer protection for breastfeeding mothers applying a uniform definition of indirect discrimination to all protected characteristics harmonizing provisions allowing voluntary positive action allowing claims for direct gender pay discrimination where there is no actual comparator making pay secrecy clauses unenforceable extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment introducing new powers for employment tribunals to make recommendations that benefit the wider workforce
The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.
The Act was adopted to amend several major pieces of legislation in Tasmania, including the Adoption Act 1988, the Anti-Discrimination Act 1998, and the Births, Deaths and Marriages Registration Act 1999, with the purpose of improving and strengthening the rights of trans people. The new provisions make it possible to change legal gender through statutory declaration and remove the previous requirement of having completed gender reassignment surgery before amending a birth certificate. Additionally, gender is now allowed to be taken of birth certificates altogether. The Act entered into force on 5 September 2019.
Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.