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Section 11 - What did the consultation hear about special measures? - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

Addressing sexual orientation

and sex and/or

gender identity

discrimination

Consultation Report

2011


Section 11 - What did the

consultation hear about special measures?

All state and territory anti-discrimination laws (apart from the New South

Wales Act) contain a distinctive type of exemption that allows positive measures

designed to benefit specific groups if they have the objective of furthering

equality.[241] For example, this

would allow the provision of a benefit or service solely to members of LGBTI

communities, if the purpose was to promote equality.

Only a small number of comments to the consultation expressed a view

regarding special measures. However, those that did express a view generally

supported such measures. For example, the Law Council of Australia noted that

‘circumstances exist in which special measures provisions are appropriate

to achieve substantive equality within the

community’.[242] They

suggested that examples of special measures could include the provision of

LGBTI-specific services for support groups, medical services, accommodation

providers and legal services, as well as employment policies which specifically

support LGBTI employees.

The {Also} Foundation suggested some examples of where special measures might

be of benefit:

It is not possible to individually list each and every kind of special

measure that might be captured by such an exception in federal

anti-discrimination legislation. However, some examples could include providing

a housing service specifically for gay men; and restricting an employment

opportunity to transgender candidates if the role to be performed involved

delivering a service designed to support transgender

youth.[243]

Other participants also highlighted the need for a special measure exemption

to be carefully worded to protect the LGBTI community and to ensure that it is

not abused.[244] For example, the

NSW Gay & Lesbian Rights Lobby commented:

A fine balance needs to be reached between outlawing all discrimination on

the basis of sexuality and sex and/or gender identity, ensuring that the act is

not used for spurious claims, and that the social and cultural identity of a

disadvantaged community group is preserved. The preservation of the

group’s identity is an important consideration in the framing of any

federal anti-discrimination legislation on the basis of sexuality and sex and/or

gender identity.

... Any ‘special measures’ included in the legislation should be

considered in light of international law and Australia’s human rights

obligations, including the need to consult with affected

communities.[245]


[241] Equal Opportunity Act

1995 (Vic), ss 19, 61, 82; Anti-Discrimination Act 1991 (Qld), ss

104, 105; Equal Opportunity Act 1984 (SA), ss 47, 85ZB(2), 85ZK; Equal

Opportunity Act 1984 (WA), ss 31, 35ZD; Discrimination Act 1991 (ACT), s 27; Anti-Discrimination Act 1992 (NT), s 57; Anti-Discrimination Act 1998 (Tas), ss 25, 26. As the grounds in Anti-Discrimination Act 1977 (NSW) – homosexuality and transgender

– provide protection only to members of the LGBTI communities, and not to,

for example heterosexuals, a special measures exemption is not needed for the

purpose of moving towards equality.

[242] Law Council of

Australia, Comment 132, p 27. See also Victorian Bar, Comment 148, p 7.

[243] {Also} Foundation,

Comment 84, p 7.

[244] NSW Gay

& Lesbian Rights Lobby, Comment 94; {Also} Foundation, Comment 84; Freedom!

Gender Identity Association, Comment 90; Name withheld, Comment

9.

[245] NSW Gay & Lesbian

Rights Lobby, Comment 94, pp

16-17.