Western Australian Numbered Acts Western Australian Numbered Acts[Section 28]
In this Schedule, the
Equal Opportunity Act 1984 * is referred to as the principal Act.
[* Reprinted as at 16
April 1996.
For
subsequent amendments see Acts Nos. 14,42 and 43 of 1996.]
The long title to the
principal Act is amended by inserting after “harassment” the
following —
“
or,
in certain cases, on gender history grounds ”.
3. Section 3 amended
Section 3 (a) of the
principal Act is amended by deleting “or age” and substituting the
following —
“ , age or, in certain cases, gender history ”.
4. Section 4 amended
Section 4 (1) of the
principal Act is amended by inserting in the appropriate alphabetical position
the following definition —
“
“gender reassigned person” means a person who has been issued with
a recognition certificate under the Gender Reassignment Act 2000 or a
certificate which is an equivalent certificate for the purposes of that Act;
”.
After Part II of the
principal Act, the following Part is inserted —
“
Part IIAA — Discrimination On Gender History Grounds In
Certain Cases
35AA. Interpretation
(1) For the purposes
of this Part, a person has a gender history if the person identifies as a
member of the opposite sex by living, or seeking to live, as a member of the
opposite sex.
(2) In subsection
(1) —
“opposite sex” means a sex of which
the person was not a member at birth.
35AB. Discrimination on gender history grounds
(1) For the purposes
of this Act, a person (in this subsection referred to as the
“discriminator”) discriminates against a gender reassigned person
on gender history grounds if, on the ground of the gender reassigned person
having a gender history, the discriminator treats the gender reassigned person
less favourably than, in circumstances that are the same or are not materially
different, the discriminator treats or would treat a person not thought by the
discriminator to have a gender history.
(2) A reference in
subsection (1) to something done on the ground of a person having a gender
history includes a reference to something done on the ground of —
(a) a
characteristic that appertains generally to persons who have a gender history;
or
(b) a
characteristic that is generally imputed to persons who have a gender history.
(3) For the purposes
of this Act, a person (in this subsection referred to as the
“discriminator” ) discriminates against a gender reassigned person
on gender history grounds if on the ground of the person having a gender
history the discriminator —
(a)
treats the person as being of the person's former sex; or
(b)
requires the person to comply with a requirement or condition —
(i)
with which a substantially higher proportion of persons
who do not have a gender history comply or are able to comply;
(ii)
which is not reasonable having regard to the
circumstances of the case; and
(iii)
with which the gender reassigned person does not or is
not able to comply.
Division 2 — Discrimination in work
35AC. Discrimination against applicants and
employees
(1) It is unlawful for
an employer to discriminate against a gender reassigned person on gender
history grounds —
(a) in
the arrangements made for the purpose of determining who should be offered
employment;
(b) in
determining who should be offered employment; or
(c) in
the terms or conditions on which employment is offered.
(2) It is unlawful for
an employer to discriminate on gender history grounds against an employee who
is a gender reassigned person —
(a) in
the terms or conditions of employment that the employer affords the employee;
(b) by
denying the employee access, or limiting the employee's access, to
opportunities for promotion, transfer or training, or to any other benefits
associated with employment;
(c) by
dismissing the employee; or
(d) by
subjecting the employee to any other detriment.
(3) Nothing in
subsection (1) or (2) renders it unlawful for a person to discriminate against
a gender reassigned person on gender history grounds in connection with
employment to perform domestic duties within a private household in which the
employer resides.
35AD. Discrimination against commission agents
(1) It is unlawful for
a principal to discriminate against a gender reassigned person on gender
history grounds —
(a) in
the arrangements the principal makes for the purpose of determining who should
be engaged as a commission agent;
(b) in
determining who should be engaged as a commission agent; or
(c) in
the terms or conditions on which the person is engaged as a commission agent.
(2) It is unlawful for
a principal to discriminate on gender history grounds against a commission
agent who is a gender reassigned person —
(a) in
the terms or conditions that the principal affords the commission agent as a
commission agent;
(b) by
denying the commission agent access, or limiting the commission agent's
access, to opportunities for promotion, transfer or training, or to any other
benefits associated with the position as a commission agent;
(c) by
terminating the engagement; or
(d) by
subjecting the commission agent to any other detriment.
35AE. Discrimination against contract workers
It is unlawful for a
principal to discriminate on gender history grounds against a contract worker
who is a gender reassigned person —
(a) in
the terms or conditions on which the principal allows the contract worker to
work;
(b) by
not allowing the contract worker to work or continue to work;
(c) by
denying the contract worker access, or limiting the contract worker's access,
to any benefit associated with the work in respect of which the contract with
the employer is made; or
(d) by
subjecting the contract worker to any other detriment.
(1) It is unlawful for
6 or more persons being persons who are proposing to form themselves into a
partnership to discriminate against a gender reassigned person on gender
history grounds —
(a) in
determining who should be invited to become a partner in the partnership; or
(b) in
the terms or conditions on which the person is invited to become a partner in
the partnership.
(2) It is unlawful for
any one or more of the partners in a partnership consisting of 6 or more
partners to discriminate against a gender reassigned person on gender history
grounds —
(a) in
determining who should be invited to become a partner in the partnership; or
(b) in
the terms or conditions on which the gender reassigned person is invited to
become a partner in the partnership.
(3) It is unlawful for
any one or more of the partners in a partnership consisting of 6 or more
partners to discriminate on gender history grounds against a partner in the
partnership who is a gender reassigned person —
(a) by
denying the partner access, or limiting the partner's access, to any benefit
arising from being a partner in the partnership;
(b) by
expelling the partner from the partnership; or
(c) by
subjecting the partner to any other detriment.
35AG. Professional or trade organizations etc.
(1) This section
applies to an organization of employees and to an organization of employers.
(2) It is unlawful for
an organization to which this section applies, or for the committee of
management of such an organization, or for a member of such a committee of
management, to discriminate on gender history grounds against a gender
reassigned person who is not a member of the organization —
(a) by
refusing or failing to accept the gender reassigned person's application for
membership; or
(b) in
the terms or conditions on which the organization is prepared to admit the
gender reassigned person to membership.
(3) It is unlawful for
an organization to which this section applies or for the committee of
management of such an organization or for a member of such a committee of
management to discriminate on gender history grounds against a gender
reassigned person who is a member of the organization —
(a) by
denying the gender reassigned person access, or limiting the gender reassigned
person's access, to any benefit provided by the organization;
(b) by
depriving the gender reassigned person of membership or varying the terms of
the gender reassigned person's membership; or
(c) by
subjecting the gender reassigned person to any other detriment.
It is unlawful for an
authority or body that is empowered to confer, renew, extend, revoke, or
withdraw an authorization or qualification that is needed for, or facilitates
the practice of, a profession, the carrying on of a trade or business or the
engaging in of an occupation to discriminate against a gender reassigned
person on gender history grounds —
(a) by
refusing or failing to confer, renew or extend the authorization or
qualification;
(b) in
the terms or conditions on which it is prepared to confer the authorization or
qualification or to renew or extend the authorization or qualification; or
(c) by
revoking or withdrawing the authorization or qualification or varying the
terms or conditions upon which it is held.
It is unlawful for an
employment agency to discriminate against a gender reassigned person on gender
history grounds —
(a) by
refusing to provide the gender reassigned person with any of its services;
(b) in
the terms or conditions on which it offers to provide the gender reassigned
person with any of its services; or
(c) in
the manner in which it provides the gender reassigned person with any of its
services.
Division 3 — Discrimination in other areas
(1) It is unlawful for
an educational authority to discriminate against a gender reassigned person on
gender history grounds —
(a) by
refusing or failing to accept the gender reassigned person's application for
admission as a student; or
(b) in
the terms or conditions on which it is prepared to admit the gender reassigned
person as a student.
(2) It is unlawful for
an educational authority to discriminate on gender history grounds against a
student who is a gender reassigned person —
(a) by
denying the student access, or limiting the student's access, to any benefit
provided by the educational authority;
(b) by
expelling the student; or
(c) by
subjecting the student to any other detriment.
35AK. Access to places and vehicles
It is unlawful for a
person (in this section referred to as the “discriminator”) to
discriminate against a gender reassigned person on gender history
grounds —
(a) by
refusing to allow the gender reassigned person access to or the use of any
place or vehicle that the public or a section of the public is entitled or
allowed to enter or use, for payment or not;
(b) in
the terms on which the discriminator is prepared to allow the gender
reassigned person access to or the use of any such place or vehicle;
(c) by
refusing to allow the gender reassigned person the use of any facilities in
any such place or vehicle that the public or a section of the public is
entitled or allowed to use, for payment or not;
(d) in
the terms on which the discriminator is prepared to allow the gender
reassigned person the use of any such facilities; or
(e) by
requiring the gender reassigned person to leave or cease to use any such place
or vehicle or any such facilities.
35AL. Goods, services and facilities
It is unlawful for a
person who, whether for payment or not, provides goods or services, or makes
facilities available, to discriminate against a gender reassigned person on
gender history grounds —
(a) by
refusing to provide the gender reassigned person with those goods or services
or to make those facilities available to the gender reassigned person;
(b) in
the terms or conditions on which the first-mentioned person provides the
gender reassigned person with those goods or services or makes those
facilities available to the gender reassigned person; or
(c) in
the manner in which the first-mentioned person provides the gender reassigned
person with those goods or services or makes those facilities available to the
gender reassigned person.
(1) It is unlawful for
a person, whether as principal or agent, to discriminate against a gender
reassigned person on gender history grounds —
(a) by
refusing the gender reassigned person's application for accommodation;
(b) in
the terms or conditions on which accommodation is offered to the gender
reassigned person; or
(c) by
deferring the gender reassigned person's application for accommodation, or
according to the gender reassigned person a lower order of precedence in any
list of applicants for that accommodation.
(2) It is unlawful for
a person, whether as principal or agent, to discriminate against a gender
reassigned person on gender history grounds —
(a) by
denying the gender reassigned person access, or limiting the gender reassigned
person's access, to any benefit associated with accommodation occupied by the
gender reassigned person;
(b) by
evicting the gender reassigned person from accommodation occupied by the
gender reassigned person; or
(c) by
subjecting the gender reassigned person to any other detriment in relation to
accommodation occupied by the gender reassigned person.
(3) Nothing in this
section applies to or in respect of —
(a) the
provision of accommodation in premises if —
(i)
the person who provides or proposes to provide the
accommodation or a near relative of that person resides, and intends to
continue to reside, on those premises; and
(ii)
the accommodation provided in those premises is for no
more than 3 persons other than a person referred to in paragraph (a) or near
relatives of such a person;
or
(b)
accommodation provided by a religious body.
(1) It is unlawful for
a person, whether as principal or agent, to discriminate against a gender
reassigned person on gender history grounds —
(a) by
refusing or failing to dispose of an estate or interest in land to the gender
reassigned person; or
(b) in
the terms or conditions on which an estate or interest in land is offered to
the gender reassigned person.
(2) Without limiting
the generality of section 70 (1), this section does not apply in relation to a
disposal of an estate or interest in land by will or by way of gift.
(1) It is unlawful for
a club, the committee of management of a club, or a member of the committee of
management of a club, to discriminate on gender history grounds against a
gender reassigned person who is not a member of the club —
(a) by
refusing or failing to accept the gender reassigned person's application for
membership; or
(b) in
the terms or conditions on which the club is prepared to admit the gender
reassigned person to membership.
(2) It is unlawful for
a club, the committee of management of a club, or a member of the committee of
management of a club, to discriminate on gender history grounds against a
gender reassigned person who is a member of the club —
(a) in
the terms or conditions of membership that are afforded to the member;
(b) by
refusing or failing to accept the member's application for a particular class
or type of membership;
(c) by
denying the member access, or limiting the member's access, to any benefit
provided by the club;
(d) by
depriving the member of membership or varying the terms of membership; or
(e) by
subjecting the member to any other detriment.
35AP. Discrimination in sport on gender history
grounds
(1) It is unlawful for
a person to discriminate against a gender reassigned person on gender history
grounds by excluding that person from —
(a) a
sporting activity; or
(b) an
administrative, coaching, refereeing or umpiring activity in relation to any
sport.
(2) Subsection (1) (a)
does not apply to discrimination against a gender reassigned person
if —
(a) the
relevant sporting activity is a competitive sporting activity for members
of the sex with which the person identifies; and
(b) the
person would have a significant performance advantage as a result of his or
her medical history.
Where, by virtue of a
provision of Division 2 or this Division, it would be unlawful, in particular
circumstances, for a person to discriminate against a gender reassigned person
on gender history grounds in doing a particular act, it is unlawful for the
first-mentioned person to request or require the gender reassigned person to
provide, in connection with or for the purposes of the doing of the act,
information (whether by way of completing a form or otherwise) that persons
who do not have a gender history would not, in circumstances that are the same
or not materially different, be requested or required to provide.
35AR. Superannuation schemes and provident funds
It is unlawful for a
person who provides a superannuation scheme or provident fund to discriminate
against a gender reassigned person on gender history grounds —
(a) by
providing a scheme or fund that discriminates, or requires or authorizes
discrimination, against that other person or that would, if the person were to
become a member of the scheme or fund, discriminate, or require or authorize
discrimination, against that person; or
(b) in
the manner in which the first-mentioned person administers the scheme or fund,
except to the extent
that —
(aa) the
discrimination —
(i)
is based upon actuarial or statistical data from a source
upon which it is reasonable to rely or where there is no such data, on such
other data as may be available; and
(ii)
is reasonable having regard to the data, if any, and
other relevant factors;
or
(bb)
where no such actuarial or statistical data is available, the discrimination
is reasonable having regard to any other relevant factors.
”.
After section 74 (3)
of the principal Act the following subsection is inserted —
“
(3a) Gender reassigned
persons shall not be regarded as constituting a class or type of applicant for
the purposes of subsection (2).
”.
Section 80 of the
principal Act is amended —
(a) by
inserting after “age” where it first occurs the
following —
“
eliminating
discrimination against gender reassigned persons on gender history grounds,
”;
(b) in
paragraph (b) (i), by inserting after “age” the
following —
“
and elimination of
discrimination against gender reassigned persons on gender history grounds
”;
and
(c) in
paragraph (e), by inserting after “age” the following —
“
or who being a gender
reassigned person or persons are subject to discrimination on gender history
grounds
”.
Section 140 of the
principal Act is amended after paragraph (a) by deleting “and” and
inserting the following —
“
(aa) to
eliminate and ensure the absence of discrimination in employment against
gender reassigned persons on gender history grounds; and
”.
Section 146 (2) (a) of
the principal Act is amended after subparagraph (i) by deleting
“and” and inserting the following —
“
(ia) to
eliminate and ensure the absence of discrimination in employment against
gender reassigned persons on gender history grounds; and
”.
(1) Each of the
following provisions of the principal Act —
(a)
section 5;
(b)
section 67 (1) (f);
(c)
section 135 (1);
(d)
section 135 (2); and
(e)
section 137,
is amended by
inserting after “II,” the following —
“ IIAA, ”.
(2) Section 156 of the
principal Act is amended by inserting after “34 (4),” the
following —
“ 35AR (aa), ”.