(Cth) Establish a Positive Duty of Care to Eliminate Discrimination Based on Sexual Orientation, Gender Identity and Intersex Status
- Sheri Dewhurst & Emmaby Barton Grace
- Jul 14
- 7 min read
Author: Sheri Dewhurst & Emmaby Barton Grace | Publish date: 14/7/2026
P: In Australia, there is no positive duty to prevent discrimination based on sexual orientation, gender identity and intersex status.
S: The Attorney-General should amend the Sex Discrimination Act 1984 (Cth) to expand the positive duty to cover protected attributes outlined in sections 5A (sexual orientation), 5B (gender identity) and 5C (intersex status) of the Act.
E: Australian Human Rights Commission (AHRC): ‘The Australian Government should expand the positive duty in the Sex Discrimination Act 1984 (Cth) to cover protected attributes outlined in sections 5A, 5B and 5C of the Act.'
Problem Identification:
Section 47C of the Sex Discrimination Act 1984 (Cth) outlines a positive duty to prevent ‘discrimination on the ground of a person’s sex …, sexual harassment, or harassment on the ground of sex …, hostile workplace environments … [and] acts of victimisation’. However, ‘federally, the positive duty does not extend to other protected attributes, including gender identity, sexual orientation and intersex status’.
According to the AHRC, this means that workplaces are not legally obligated to ‘take proactive steps to prevent [LGBTQIA+] discrimination and harassment’.
Context:
A positive duty refers to the obligation of ‘employers to, as far as practicable, prevent discrimination and build systems to respond when discrimination does occur.’
According to the Australian Bureau of Statistics, ‘one in twenty (4.5% or 910,600 people) Australians aged 16 years and over are LGBTI+.’
Arguments:
The Race Discrimination Commissioner, Giridharan Sivaraman, highlighted that reactive policies require ‘harm to be suffered before action can be taken’, failing to protect individuals from the harm associated with discrimination. Diversity Council Australia (DCA) found that ‘LGBTIQ+ workers were 1.5 times more likely to experience [discrimination or harassment]’. They noted that these workers were more likely to report ‘lower job satisfaction, reduced engagement, and that work negatively impacted their mental health.’ Dr Dee Tomic, an occupational health researcher from Monash University, emphasised that ‘these patterns [of discrimination and mental health impacts] are concerning not only from an equity perspective, but also for public health.’
DCA noted that ‘the current reactive process isn’t working’ given the increasing rates of discrimination. The AHRC noted that ‘evidence shows that the most effective strategies move beyond [addressing] discrimination to more proactive organisation-wide strategies for wider culture change.’
The AHRC highlighted that a reactive system is a ‘burden [for] workers’. Equality Australia explained that this is because it is ‘dependant on individual complaints’ rather than ‘provid[ing] a mechanism for enforcement that is systemic’ and places the onus on organisations. Australia’s National Research Organisation for Women’s Safety found that LGBTQIA+ young people reported barriers to reporting workplace sexual harassment that were specific to their LGBTQIA+ status. For example, participants reported concerns that making a complaint ‘would require them to “come out” in a potentially unsafe environment.’ Participants also ‘reported increased difficulty in accessing reporting pathways due to homophobia/biphobia and transphobia.’ The impact of these barriers was evident in the low number of participants who made a report (25%) and, among those who did, the low satisfaction rate with the outcome (9%).
Some organisations have noted that businesses may experience extra burdens due to the requirements of implementing a positive duty. However, Sivaraman noted that ‘businesses have shown they can adapt to these changes’ associated with other positive duties being implemented. For example, the Workplace Gender Equality Agency released its first results of employer actions in response to the positive duty to prevent workplace sexual harassment. They reported that ‘nearly 99% of employers have a formal policy on work-related sexual harassment and discrimination’ and 91% were ‘prioritising prevention measures’. Further, Equality Australia noted that ‘what’s considered “reasonable” [preventative steps] would depend on the size and resources of the organisation – for example, a small business wouldn’t be expected to do the same as a large multinational.’
Advice/Solution Identification:
The AHRC and Equality Australia have called for a positive duty of care to prevent discrimination based on sexual orientation, gender identity and intersex status. Equality Australia argued that ‘it is better to prevent discrimination rather than address the harm once it has occurred.’ International Day Against LGBTQIA+ Discrimination further noted that ‘a safe and supportive workplace is not just a moral imperative—it is essential for employee well-being, productivity, and retention.’
Precedent:
In VIC and the NT, there is already a positive duty to eliminate discrimination, sexual harassment and victimisation of protected attributes such as sexual orientation, gender identity and sex characteristics (intersex status).
Public Support:
Broad Support:
Australia’s National Research Organisation for Women’s Safety - Called for safe and supportive workplaces for LGBTQIA+ employees, which they noted ‘have direct relevance to the positive duty regulation’. However, they did not call for the expansion of the ‘positive duty’ in the Sex Discrimination Act 1984 (Cth) directly.
This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.
News Coverage:
Q News - “New research shows discrimination rising for LGBTQI+ workers”. This article reported that new research found discrimination and harassment against LGBTQI+ workers is increasing in Australian workplaces, with these workers experiencing more exclusion, unfair assumptions, and mistreatment than non-LGBTQI+ colleagues. By: TJ Watts | 5 February 2026. Read the article here.
Monash University - “Monash study reveals work participation inequalities for LGBTQ+ Australians”. This article reported on the significant disparities in employment and work participation among LGBTQ+ Australians, highlighting ongoing structural inequalities in the labour market. No author listed | 15 January 2026. Read the article here.
ABC Queer - “World-first study finds 77 per cent of young LGBTQ Australians have experienced sexual harassment at work”. This article reported on a national study finding that 77% of young LGBTQ Australians have experienced targeted workplace sexual harassment, often through identity-based comments, questions, or jokes, with most victims choosing not to report it due to distrust in workplace systems. By: Mon Schafter | 3 Dec 2024. Read the article here.
Where to go to learn more:
(2026) Equal Identities: A human rights review of the experiences of trans and gender diverse people in Australia | Australian Human Rights Commission - This report ‘examine[d] the human rights situation of trans and gender diverse people in Australia’. It provided an overview of various challenges and examples of good practice. It also made 19 recommendations for governments and service providers to improve the lived experience and human rights of trans and gender diverse Australians. This included the recommendation to expand the positive duty in the Sex Discrimination Act 1984 (Cth) to cover sexual orientation, gender identity, and intersex status. Read the full report here.
(2022) Everyone Deserves Respect @ Work: Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 | Equality Australia - This submission recommended amendments to the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) regarding positive duties, representative applications, cost protections, and systemic discrimination. Notably, it recommended that provisions in the Sex Discrimination Act 1984 (Cth) ‘should be extended beyond the attribute of “sex” and should apply to all attributes protected under federal discrimination law’ in the context of a positive duty. Read the full submission here.
(n.d.) For Organisations: Positive Duty | Victorian Equal Opportunity & Human Rights Commission - This guide provides an explanation of how the positive duty legislation works in VIC. Notably, it provides examples of how an organisation can meet the positive duty, with different examples based on different types and sizes of workplaces. While this is specific to VIC legislation, this is a domestic precedent, and it can provide an example of how the law may work at the federal level. Read the full guide here.
(2024) #SpeakingOut@Work report: Sexual harassment of LGBTQ young people in the workplace and workplace training | Australia’s National Research Organisation for Women’s Safety (ANROWS) - This report explored how LGBTQ young people experience workplace sexual harassment, including how they perceive and respond to this harassment, intersectional social inequalities impacting harassment, and identification of factors contributing to this harassment. Read the full report here.
Sex Discrimination Act 1984 (Cth) - Read the full Act here.
Human Perspective:
Emily, a 23-year-old transgender woman, had finally secured a full-time role at a marketing company after struggling for years to find stable employment. At first, she was excited to work in what seemed like an inclusive environment, but over time, coworkers began making jokes about her gender identity and excluding her from team meetings and social events. When a client complained about “being uncomfortable” with Emily, her manager quietly reduced her hours instead of addressing the discrimination. Because there was no positive duty requiring the company to proactively prevent discrimination against transgender employees, the workplace had no training, policies or systems in place to protect her before the harm occurred. Emily felt too afraid to make a formal complaint, worried she would lose her job entirely or be labelled ‘difficult’. As the harassment continued, her anxiety worsened, she stopped feeling safe at work, and her mental health declined. Eventually, Emily resigned, leaving her financially insecure and questioning whether she would ever find a workplace where she could simply be respected for who she is.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A.
Support
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Disclaimers
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Reference list:
Anti-Discrimination Act 1992 (NT). https://legislation.nt.gov.au/en/Legislation/ANTIDISCRIMINATION-ACT-1992
Australian Bureau of Statistics. (2024, December 19). Estimates and characteristics of LGBTI+ populations in Australia: Data on gender, trans and gender diverse, sexual orientation, and people born with variations of sex characteristics. https://www.abs.gov.au/statistics/people/people-and-communities/estimates-and-characteristics-lgbti-populations-australia/latest-release
Australian Human Rights Commission (AHRC). (2026). Equal Identities: A human rights review of the experiences of trans and gender diverse people in Australia. https://humanrights.gov.au/media/documents-files-PDFs/strategic-communications/EQUAL_IDENTITIES_FINAL_DIGITAL.pdf
Australian Human Rights Commission (AHRC). (2025, August 6). Race Discrimination Commissioner Sivaraman National Press Club Address. https://humanrights.gov.au/about-us/media-centre/speeches/race/race-discrimination-commissioner-sivaraman-national-press-club-address
Diversity Council Australia (DCA). (n.d.) Implementing positive duties. https://www.dca.org.au/resources/di-planning/compliance/implementing-positive-duties
Diversity Council Australia (DCA). (2026, February 3). LGBTIQ+ workers still face exclusion at work. Here’s what employers can do. https://www.dca.org.au/news/blog/lgbtiq-workers-still-face-exclusion-at-work-heres-what-employers-can-do
Equality Australia. (2022, October 11). Everyone Deserves Respect @ Work: Submission to the Senate Legal And Constitutional Affairs Committee Inquiry into the Anti-Discrimination and Human Rights Legislation Amendment (Respect At Work) Bill 2022. https://equalityaustralia.org.au/wp-content/uploads/2022/10/Equality-Australia-Respect-@-Work-Submission-2.pdf
Equality Australia. (2025). Now’s Our Chance: Tell the Government to Fix Our Broken Discrimination Laws. https://equalityaustralia.org.au/wp-content/uploads/2025/06/2025.06.27-LGBTIQ-guide-anti-discrim-sub-NSWLRC-Paper-1.pdf
Equality Australia (n.d.) Stand Up Against Hate. https://equalityaustralia.org.au/our-work/areas-of-work/stand-up-against-hate/
Equal Opportunity Act 2010 (VIC). https://content.legislation.vic.gov.au/sites/default/files/2026-04/10-16aa032-authorised.pdf
International Day Against LGBTQIA+ Discrimination (IDAHOBIT). (2025, March 25). AWEI 2024 Report: LGBTQIA+ Employees Face Rising Discrimination at Work.
Monash University. (2026, January 15). Monash study reveals work participation inequalities for LGBTQ+ Australians. https://www.monash.edu/news/articles/monash-study-reveals-work-participation-inequalities-for-lgbtq-australians
People with Disability Australia (PWDA). (2025, October 17). ‘Fight for Me Instead of Making Me Fight’: Submission to the Attorney-General’s Department’s Disability Discrimination Act 1992 (Cth) Review. https://pwd.org.au/wp-content/uploads/2025/11/PWDA.SB_.DDA_.Review_Submission_Final_17Oct25.pdf
Robinson, K. H., Allison, K., Jackson, E. F., Davies, C., Smith, E. K., Hawkey, A., Ussher, J., Ullman, J., Marjadi, B., & Byron, P. (2024). #SpeakingOut@Work report: Sexual harassment of LGBTQ young people in the workplace and workplace training. ANROWS. https://anrows-2019.s3.ap-southeast-2.amazonaws.com/wp-content/uploads/2024/11/02111442/SPEAKINGOUT%40WORK_Robinson_Report.pdf
Sex Discrimination Act 1984 (Cth). https://www.legislation.gov.au/C2004A02868/latest/text.au/au/legis/cth/consol_act/sda1984209/s47b.html
Workplace Gender Equality Agency (WGEA). (2024, November 11). MEDIA RELEASE: New WGEA results highlight areas for employer action to prevent, and respond to, work-related sexual harassment [Media release]. https://www.wgea.gov.au/newsroom/2024-new-data-workplace-sexual-harassment
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