Is discrimination based on sexuality against the law?

Yes. It is unlawful to discriminate on the basis of actual or assumed sexual orientation, and to discriminate on the basis of characteristics associated with a particular sexual orientation. The Human Rights and Equal Opportunity Commission Act 1986 (Cwlth) provides protection in cases of discrimination on the basis of sexuality within the area of employment and occupation. The state and territory governments also have legislation in place making it illegal to discriminate on the basis on sexuality.

In most states and territories it is also unlawful to publicly encourage hatred, serious contempt or severe ridicule of gay or lesbian people. This behaviour is called vilification. Information on what is specifically covered under state, territory and Commonwealth legislation in relation to sexuality can be found at the Australasian Legal Information Institute website -http://www.austlii.edu.au/

What is discrimination on the grounds of sexuality?

Discrimination in this context means treating someone unfairly based on their sexual orientation, or what someone thinks is their sexual orientation. A person’s sexual orientation may be:

• Heterosexual: sexual attraction to or feelings for a person of the opposite sex;
• Homosexual: sexual attraction to or feelings for a person of the same sex (gay /lesbian);
• Bisexual: sexual attraction to or feelings for people of both sexes.

There are three types of unlawful sexuality discrimination:

• Direct discrimination;
• Indirect discrimination;
• Harassment.

Direct sexuality discrimination – treating someone differently

Direct discrimination is to treat someone unfairly or less favourably than someone in similar circumstances because of their sexuality.

Example

A sports coach, who is also a lesbian, is invited to apply for a promotion. She is interviewed for the position but another applicant with fewer qualifications is chosen. She subsequently discovers that the selection committee discussed her sexuality and that is why she did not get the job. The sports coach may have been discriminated against because she is a lesbian. It would be inappropriate for her to be treated unfairly and considered unsuitable for the position because of her sexuality rather than her coaching ability or the inherent requirements of the position.

Indirect sexuality discrimination – treating everyone the same way, but to some people’s disadvantage

Indirect sexuality discrimination is treatment that can appear on the surface to be fair or neutral, but which has an unequal effect on people of a particular sexual orientation. Indirect discrimination occurs when a requirement or expectation stops a person from doing something. A requirement may include policies, practices, admission or selection criteria or rules. For indirect discrimination to be unlawful, the requirement or expectation placed on the person has to be something that is unreasonable in the circumstances.

Example

A community swim centre allows its members’ partners access to its gymnasium for free as affiliated members but does not allow same-sex partners these benefits. After some lobbying the club reconsiders its policies, stops this discriminatory practice and allows same-sex partners affiliated member status. However, shortly after, the club introduces a special ‘gold’ membership category granting any affiliated member of more than five years additional benefits. Although the gold membership policy makes no distinction on the grounds of sexuality, it indirectly disadvantages gay and lesbian partners, who were excluded from affiliated membership because of a discriminatory practice that prevented them meeting the gold membership requirements. The swim centre may be discriminating against gay and lesbian partners on the basis of sexuality unless it can show that the practice is reasonable.

What is harassment – what is harassment based on sexuality?

Harassment takes many forms: some are unlawful, some are not. However, all harassment is undesirable and will most certainly breach organisational polices and codes of conduct - consequently it must be prevented and managed.

Harassment is any type of behaviour that:

• is not wanted;
• is not asked for; and
• is not returned;

that a reasonable person would recognise as being unwelcome and likely to cause the recipient to feel offended, humiliated or intimidated.

Behaviour such as unwanted sexual comments or abuse, offensive gestures, seemingly harmless jokes and put-downs can be interpreted as harassment.

It is important to remember that not everyone views behaviour in the same way. In assessing whether certain behaviour constitutes harassment, the intention of the alleged harasser is not considered. Instead the focus is on the impact on the person harassed and whether or not the behaviour could reasonably have been expected to harass. It is crucial, therefore, that all members of sporting organisations be sensitive to how their behaviour may be received by others.

Examples of behaviours that could be harassment and/or homophobic:

• A coach making fun of a member of the opposing team because of his/her sexuality;
• A team manager telling an athlete who is a lesbian to keep her sexual orientation a secret and not show any public signs of her sexual orientation;
• A sports administrator telling a joke about a sports person she/he thinks is gay;
• An athlete calling a player an offensive name or using unsuitable language because of his/her actual or assumed sexuality.

Vilification

Vilification is any act or form of behaviour that happens publicly, as opposed to privately, which could incite others to hate, threaten, ridicule, insult or show contempt towards another person on the basis of that person’s sexual orientation. The person doing the vilifying will be responsible for it, but anyone who supports the behaviour may also be responsible. The difference between offensive behaviour and vilification is that vilification does not have to be specifically directed at another person.

Examples of things that could be vilification:

• A tennis club seems unconcerned and refuses to have homophobic graffiti removed from the change room walls;
• A hockey coach makes homophobic statements at a team meeting in an effort to encourage hatred and contempt for an opposing team member because of his/her sexual orientation;
• An athletics association publishes a homophobic cartoon in its newsletter.

Vilification based on a person’s sexuality is unlawful in several states and territories. Regardless of whether specific legislation exists this behaviour is harmful, destructive and undesirable, and therefore should not be accepted or tolerated.

What can I do if one of these things happens to me?

While it may not seem like it, you do have options. There is always something you can do. Doing nothing means that the situation will stay the same or get worse.

What you do will depend on many factors, including the nature of the incident that occurred, the complaint handling procedures that exist, the support available to you and how far you feel you need to take action to rectify the situation. If you need information or advice regarding making a complaint or simply raising a concern in relation to discrimination on the basis of sexuality in sport, the following list may assist you in working out what to do and who to contact.

You have several options:

• If you feel you can, talk to the individual or the organisation that has discriminated or harassed you. Explain to them that you believe their actions are morally wrong and possibly illegal. Explain to them the incident from your point of view and how their actions made you feel. They may not have considered that their actions were harassing, discriminatory or hurtful and may immediately regret their behaviour.
• Discuss the matter with a supportive person, such as a friend, family member or club/team member or official.
• Discuss the matter with a sport industry Member Protection Information Officer (MPIO). They may be able to assist you by listening, providing information and clarifying the options available to you. If you require a MPIO, you can contact your national sporting organisation or state or territory department of sport and recreation, or you can use the member protection information officer database.
• Find out if the sport has a member protection policy. If it does, follow the process outlined within the policy to lodge a complaint. If they do not have a policy or you feel the process outlined in the policy will not assist you or is not adequate you can still lodge a complaint with the sport. Start at the level (club, state or national) that the incident occurred.
• Contact your state department of sport and recreation or the Australian Sports Commission (ask for Sport Ethics). They may be able to assist by providing information and clarifying the options available to you.
• Contact the Equal Opportunity Commission in your state or territory, or the Human Rights and Equal Opportunity Commission. They will listen to your complaint, answer your questions and advise whether your query is covered by equal opportunity laws. They will also be able to discuss the complaint process with you. If the Commission cannot address your concern, the staff there will suggest another organisation that may be able to offer support or advice.

This publication is intended as a general guide and is not to be taken as professional advice. The Australian Sports Commission recommends you seek professional advice if a specific situation arises involving harassment or discrimination.