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This is a Bill, not an Act. For current law, see the Acts databases.
WESTERN AUSTRALIA
GENDER REASSIGNMENT BILL
(No. 2) 1997
ARRANGEMENT
Page
PART 1 -- PRELIMINARY
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Crown bound 3
PART 2 -- GENDER REASSIGNMENT BOARD
5. Establishment and function of Board 4
6. President of Board 4
7. Other Board members 5
8. Arrangement of business 5
9. Remuneration and allowances of members 6
10. Practice directions 6
11. Executive officer and other officers 6
12. Judicial notice of seal and signatures 7
13. Annual report 7
No. 27 -- 2
Gender Reassignment Bill (No. 2) 1997
PART 3 -- RECOGNITION CERTIFICATES
14. Applications for recognition certificates 8
15. Issue of recognition certificates 9
16. Effect of recognition certificate 10
17. Registration of certificates 10
18. Issuing of new birth certificate 11
19. Cancellation of fraudulent recognition certificates 11
PART 4 -- MISCELLANEOUS
20. Issue of replacement qualification certificates 12
21. Appeals 13
22. Confidentiality 14
23. False or misleading statements 14
24. Offences 14
25. Age 15
26. Regulations 15
27. Transitional 16
28. Amendment of Equal Opportunity Act 1984 16
29. Consequential amendments 16
SCHEDULE 1 -- CONSTITUTION AND PROCEEDINGS
OF THE BOARD
1. Term of office 17
2. Resignation and removal 17
3. Leave of absence 17
4. Acts of acting president 17
5. President to preside 18
6. Use of seal 18
7. Register of applications 18
SCHEDULE 2 -- AMENDMENT OF EQUAL
OPPORTUNITY ACT 1984
1. Interpretation 19
2. Long title amended 19
3. Section 3 amended 19
4. Section 4 amended 19
ii
Gender Reassignment Bill (No. 2) 1997
5. Part IIAA inserted 20
6. Section 74 amended 33
7. Section 80 amended 34
8. Section 140 amended 34
9. Section 146 amended 34
10. Consequential amendments 35
iii
WESTERN AUSTRALIA
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
GENDER REASSIGNMENT
BILL (No. 2) 1997
A BILL FOR
AN ACT to allow the reassignment of gender and establish
a Gender Reassignment Board with power to issue
recognition certificates; to make consequential
amendments to the Constitution Acts Amendment
Act 1899 and the Registration of Births, Deaths and
Marriages Act 1961; to amend the Equal Opportunity
Act 1984 to promote equality of opportunity, and
provide remedies in respect of discrimination, on
gender history grounds in certain cases; and for
connected purposes.
The Parliament of Western Australia enacts as follows:
1
Gender Reassignment Bill (No. 2) 1997
cl. 1
PART 1 -- PRELIMINARY
Short title
1. This Act may be cited as the Gender Reassignment Act
(No. 2) 1997.
5 Commencement
2. The provisions of this Act come into operation on such day as
is, or days as are respectively, fixed by proclamation.
Interpretation
3. In this Act, unless the contrary intention appears --
10 ''adult'' means a person of or above the age of 18 years;
''Board'' means the Gender Reassignment Board of
Western Australia established by section 5;
''child'' means a person under the age of 18 years;
''corresponding law'' means --
15 (a) a law of another State or of a Territory; or
(b) a law of another country,
declared by the regulations to be a corresponding law;
''equivalent certificate'' means a certificate issued under
a corresponding law that corresponds to a recognition
20 certificate issued under this Act;
''gender characteristics'' means the physical
characteristics by virtue of which a person is identified
as male or female;
2
Gender Reassignment Bill (No. 2) 1997
cl. 4
''medical practitioner'' has the meaning given by
section 3 of the Medical Act 1894;
''president'' means the president of the Board;
''reassignment procedure'' means a medical or surgical
5 procedure (or a combination of such procedures) to
alter the genitals and other gender characteristics of a
person, identified by a birth certificate as male or
female, so that the person will be identified as a
person of the opposite sex and includes, in relation to
10 a child, any such procedure (or combination of
procedures) to correct or eliminate ambiguities in the
child's gender characteristics;
''recognition certificate'' means a certificate issued under
this Act that identifies a person who has undergone a
15 reassignment procedure as being of the sex to which
the person has been reassigned;
''Registrar General'' means the Registrar General
appointed under the Registration of Births, Deaths
and Marriages Act 1961.
20 Crown bound
4. This Act binds the Crown.
3
Gender Reassignment Bill (No. 2) 1997
cl. 5
PART 2 -- GENDER REASSIGNMENT BOARD
Establishment and function of Board
5. (1) A board called the Gender Reassignment Board of
Western Australia is established.
5 (2) The functions of the Board are --
(a) to receive and determine applications for recognition
certificates; and
(b) to issue recognition certificates in suitable cases.
(3) The Board is to have a seal.
10 (4) Schedule 1 has effect with respect to the constitution and
proceedings of the Board.
President of Board
6. (1) The Governor is to appoint a person as president of the
Board.
15 (2) A person may be appointed as president only if he or
she --
(a) is or has been a Judge of the Supreme Court, the
District Court, or the Family Court of Western
Australia, or is or has been a legal practitioner as
20 defined in the Legal Practitioners Act 1893 admitted
for not less than 8 years; and
(b) in the case of a person who is a Judge of the Supreme
Court, the District Court, or the Family Court of
Western Australia, has been recommended for
25 appointment by the Chief Justice of Western
Australia.
4
Gender Reassignment Bill (No. 2) 1997
cl. 7
(3) The Minister may appoint a person qualified to be
appointed as president, to be the acting president of the Board
during the illness, unavailability, or absence of the president, and
while so appointed that person is to perform the functions of the
5 president.
(4) A person who is a Judge of the Supreme Court, the
District Court, or the Family Court of Western Australia may be
appointed to be the acting president of the Board only if he or
she has been recommended for appointment by the Chief Justice
10 of Western Australia.
Other Board members
7. The Governor may appoint not more than 5 persons in
addition to the president as members of the Board, and such
persons are to include --
15 (a) a medical practitioner;
(b) a person who has undergone a reassignment
procedure; and
(c) a person with experience in equal opportunity
matters.
20 Arrangement of business
8. (1) The president --
(a) is responsible for arranging the business of the Board;
and
(b) subject to subsection (2), is to specify the members
25 who are to perform the functions of the Board for the
purpose of any particular matter.
(2) The Board must be constituted by not less than
3 members.
(3) The president may amend or revoke a specification made
30 under subsection (1) (b).
5
Gender Reassignment Bill (No. 2) 1997
cl. 9
Remuneration and allowances of members
9. (1) Subject to subsection (2), a member may be paid such
remuneration and travelling and other allowances as the
Minister from time to time determines, on the recommendation of
5 the Minister for Public Sector Management.
(2) A president who holds office as a Judge or any other
member who holds a full-time position that is remunerated out of
moneys appropriated by Parliament or by virtue of a written law,
is not entitled to remuneration under subsection (1) but may be
10 paid travelling and other allowances with the approval of the
Minister.
Practice directions
10. (1) The president may give practice directions for or in
relation to the practice and procedure of the Board.
15 (2) Practice directions --
(a) may apply either generally or in a particular matter;
and
(b) must not be inconsistent with this Act.
Executive officer and other officers
20 11. (1) The chief executive officer is to arrange for the Board
to have the services of an executive officer and such other officers
as are necessary for the proper functioning of the Board.
(2) The executive officer and other officers may perform
functions for the Board in conjunction with the functions of any
25 other office in the Public Service.
6
Gender Reassignment Bill (No. 2) 1997
cl. 12
Judicial notice of seal and signatures
12. All courts, judges and persons acting judicially shall take
judicial notice of --
(a) the seal of the Board;
5 (b) the signature of any person who is or has been the
president or another member of the Board or the
executive officer; and
(c) the fact that that person is or was the president,
member, or executive officer, as the case may be.
10 Annual report
13. (1) As soon as practicable in each year and not later than
30 September, the Board must prepare and deliver to the
Minister a report on the performance of its functions during the
year which ended on the preceding 30 June.
15 (2) The Minister must cause the report received under
subsection (1) to be laid before each House of Parliament within
14 sitting days of that House after the Minister receives it.
(3) The Board may at any time report to the Minister on any
matter relating to the operation of this Act.
7
Gender Reassignment Bill (No. 2) 1997
cl. 14
PART 3 -- RECOGNITION CERTIFICATES
Applications for recognition certificates
14. (1) Where a person has undergone a reassignment
procedure (before or after the commencement of this Act and
5 within the State or elsewhere), application may be made to the
Board in accordance with this section for the issue of a
recognition certificate.
(2) An application may be made under this section --
(a) by the person to whom the application relates; or
10 (b) if that person is a child, by that child's guardian.
(3) An application must be made in the prescribed form and
accompanied by the prescribed fee.
(4) A copy of the application must be served on --
(a) the Minister; and
15 (b) any other person who should, in the Board's opinion,
be served with notice of the application.
(5) A person referred to in subsection (4) is entitled to
appear at the hearing of the application and to make submissions
to the Board.
20 (6) In proceedings on an application, the Board is not bound
by the rules of evidence, but may inform itself on any matter in
such manner as the Board thinks appropriate.
(7) Proceedings under this section must be conducted in
private.
25 (8) The Board must determine every application by giving a
written decision containing the reasons for that decision.
8
Gender Reassignment Bill (No. 2) 1997
cl. 15
(9) A decision of the Board not to issue a recognition
certificate in a proceeding does not preclude a further application
to the Board by the applicant based on additional or changed
circumstances.
5 Issue of recognition certificates
15. (1) Where an application under section 14 relates to an
adult, the Board may issue a recognition certificate if --
(a) one or more of the following applies --
(i) the reassignment procedure was carried out in
10 the State;
(ii) the birth of the person to whom the application
relates is registered in the State;
(iii) the person to whom the application relates is a
resident of the State and has been so resident for
15 not less than 12 months;
and
(b) the Board is satisfied that the person --
(i) believes that his or her true gender is the gender
to which the person has been reassigned;
20 (ii) has adopted the lifestyle and has the gender
characteristics of a person of the gender to which
the person has been reassigned; and
(iii) has received proper counselling in relation to his
or her gender identity.
25 (2) Where an application under section 14 relates to a child,
the Board may issue a recognition certificate if --
(a) one or more of the following applies --
(i) the reassignment procedure was carried out in
the State;
9
Gender Reassignment Bill (No. 2) 1997
cl. 16
(ii) the birth of the child is registered in the State;
(iii) the child is a resident of the State and has been
so resident for not less than 12 months;
and
5 (b) the Board is satisfied that it is in the best interests of
the child that the certificate be issued.
(3) A recognition certificate cannot be issued to a person who
is married.
Effect of recognition certificate
10 16. (1) A recognition certificate is conclusive evidence that
the person to whom it refers --
(a) has undergone a reassignment procedure; and
(b) is of the sex stated in the certificate.
(2) An equivalent certificate issued under a corresponding
15 law has the same effect as a recognition certificate under this
Act.
Registration of certificates
17. (1) Subject to this section, if a recognition certificate, or
an equivalent certificate issued under a corresponding law,
20 relating to a person whose birth is registered in the State is
produced to the Registrar General, the Registrar General
must --
(a) register the reassignment of gender; and
(b) make such other entries and alterations on any
25 register or index kept by the Registrar General as
may be necessary in view of the reassignment.
10
Gender Reassignment Bill (No. 2) 1997
cl. 18
(2) A person must not produce a recognition certificate to the
Registrar General --
(a) within one month after the day on which the
certificate is issued; or
5 (b) if an appeal is commenced against the decision to
issue the certificate, before the appeal is determined.
Penalty: $2 000.
(3) A certificate produced to the Registrar General under
this section must be accompanied by an application in a form
10 approved by the Registrar General and by the prescribed fee.
Issuing of new birth certificate
18. (1) After the reassignment of gender is registered by the
Registrar General and the register altered accordingly, a birth
certificate issued by the Registrar General for the person must,
15 unless otherwise requested by the person or permitted by the
regulations, show the person's sex in accordance with the register
as altered.
(2) Any such birth certificate must not include a statement
that the person has changed sex.
20 Cancellation of fraudulent recognition certificates
19. (1) The Supreme Court may cancel a recognition
certificate if it appears that the certificate was obtained by fraud
or other improper means.
(2) The Supreme Court may, on cancelling a recognition
25 certificate, make any consequential orders that may be necessary
or desirable in the circumstances of the case.
11
Gender Reassignment Bill (No. 2) 1997
cl. 20
PART 4 -- MISCELLANEOUS
Issue of replacement qualification certificates
20. (1) If --
(a) a certificate of qualification refers to a gender
5 reassigned person by a name that by common usage
is not attributed to a person of the gender to which
the person has been reassigned; and
(b) the person has adopted another name,
the issuing authority, on being satisfied of those matters, may
10 issue to the person a replacement certificate showing the name
referred to in paragraph (b).
(2) Except for the name of the person, a replacement
certificate may be identical to the original certificate in every
respect including the date of issue.
15 (3) A replacement certificate need not show that it is issued
in place of the original but may do so if the issuing authority
considers that it would not otherwise be practicable to issue the
certificate.
(4) An issuing authority is not to be taken to have issued a
20 false document by issuing a replacement certificate in accordance
with this section.
(5) In this section --
''certificate of qualification'' means a document that
shows that a person has an authorization or
25 qualification or experience that is needed for or
facilitates --
(a) the practice of a profession;
12
Gender Reassignment Bill (No. 2) 1997
cl. 20
(b) the carrying on of a trade or business; or
(c) the engaging in of an occupation;
''gender reassigned person'' means a person who has
been issued with a recognition certificate or an
5 equivalent certificate;
''issuing authority'', in relation to a certificate of
qualification, means the authority that issued the
certificate or a successor to that authority.
Appeals
10 21. (1) An aggrieved person may appeal to the Supreme
Court against a decision of the Board on an application for the
issue of a recognition certificate.
(2) An appeal must be commenced within 30 days after the
day on which the appellant receives notice of the decision against
15 which the appeal lies, but the Supreme Court may grant leave
for an appeal to be commenced out of time if the Court is
satisfied that there was a reasonable excuse for not commencing
the appeal within the time allowed.
(3) On an appeal, the Supreme Court may --
20 (a) confirm, reverse or annul the decision subject to
appeal;
(b) if it considers that a recognition certificate should be
issued, direct the Board to issue the certificate;
(c) if it considers that a recognition certificate should be
25 cancelled, cancel the certificate; and
(d) make any consequential or ancillary orders.
13
Gender Reassignment Bill (No. 2) 1997
cl. 20
(4) On the determination of an appeal by the Supreme
Court, the Board must take whatever action is necessary to give
effect to that determination.
Confidentiality
5 22. (1) A person who holds or formerly held a position
involving duties related to the administration of this Act must
not divulge confidential information obtained by virtue of that
position except as may be required for the purposes of official
duties, or as may be permitted in writing by the person to whom
10 the information relates.
(2) An issuing authority under section 20, or any person
acting on its behalf, must not divulge confidential information
obtained for the purposes of that section except as may be
required for those purposes, or as may be permitted in writing by
15 the person to whom the information relates.
Penalty: $2 000 or imprisonment for 6 months.
False or misleading statements
23. A person must not make a statement knowing it to be false
or misleading in a material respect for the purposes of, or in
20 connection with, an application under this Act.
Penalty: $2 000 or imprisonment for 6 months.
Offences
24. (1) A prosecution for an offence against this Act cannot be
commenced without the consent of the Attorney General.
25 (2) In proceedings for an offence against this Act a document
apparently signed by the Attorney General stating that the
Attorney General consents to a particular prosecution is
14
Gender Reassignment Bill (No. 2) 1997
cl. 22
sufficient evidence, in the absence of proof to the contrary, to
prove that consent.
Age
25. If the age of a person is material to an application before
5 the Board under this Act and there is no certain evidence of age,
the Board may act on its own estimate of the age of that person.
Regulations
26. (1) The Governor may make regulations prescribing all
matters that are required or permitted by this Act to be
10 prescribed, or are necessary or convenient to be prescribed, for
achieving the objects and giving effect to the purposes of this Act
including --
(a) the practices and procedures to be followed on
applications to the Board under this Act;
15 (b) the regulation of access to documents in the executive
officer's possession or entries in registers or indexes
kept by the executive officer relating to applications to
the Board under this Act; and
(c) penalties not exceeding $2 000 for a breach of, or non-
20 compliance with, a regulation.
(2) A regulation under subsection (1) (a) may be made only
on the recommendation of or after consultation with the Board.
15
Gender Reassignment Bill (No. 2) 1997
cl. 26
Transitional
27. Notwithstanding section 13, if this Act comes into force on
a day before 1 July in any year, the first report on the
performance of the Board's functions required to be prepared by
5 that section is to be prepared in respect of the period from the
day the Act comes into force until the end of June in the next
following year.
Amendment of Equal Opportunity Act 1984
28. The Equal Opportunity Act 1984 is amended as set out in
10 Schedule 2.
Consequential amendments
29. (1) Section 65 (1) of the Registration of Births, Deaths
and Marriages Act 1961* is amended by inserting after ''Act'' the
following --
15 '' or the Gender Reassignment Act 1997 ''.
[* Reprinted as at 15 April 1994.
For subsequent amendments see 1995 Index to
Legislation of Western Australia, Table 1, p. 188.]
(2) Part 3 of Schedule V to the Constitution Acts Amendment
20 Act 1899* is amended by inserting in the appropriate
alphabetical position the following --
''
The Gender Reassignment Board of Western Australia
established by the Gender Reassignment Act 1997.
25 ''.
[* Reprinted as at 22 January 1997.]
16
Gender Reassignment Bill (No. 2) 1997
Sch. 1
SCHEDULE 1 -- CONSTITUTION AND PROCEEDINGS
OF THE BOARD
[Section 5]
Term of office
5 1. (1) Subject to clause 2, a member holds office for such term as is
specified in the member's instrument of appointment, and in the case of
the president that term is not to exceed 5 years and in the case of any
other member is not to exceed 3 years.
(2) A member may from time to time be reappointed.
10 (3) Despite subclause (1) and clause 2, where the term of office of
a member has expired or the member has resigned, the member may,
with the approval of the Minister, continue in office for the purpose of
completing any function.
Resignation and removal
15 2. (1) A member may resign at any time by notice in writing
delivered to the Governor.
(2) The Governor may remove a member from office --
(a) if the member is an insolvent under administration as that
expression is defined in the Corporations Law; or
20 (b) on the grounds of neglect of duty, misbehaviour,
incompetence or mental or physical incapacity impairing
the performance of the member's functions, proved to the
satisfaction of the Governor.
Leave of absence
25 3. The Minister may grant leave of absence to a member on such
terms and conditions as the Minister thinks fit.
Acts of acting president
4. No act or omission of a person acting as president under this Act
shall be questioned on the ground that the occasion for that acting had
30 not arisen or had ceased.
17
Gender Reassignment Bill (No. 2) 1997
Sch. 1
President to preside
5. (1) The president shall preside at every meeting or proceeding of
the Board.
(2) The president is to determine any question relating to the
5 admissibility of evidence or any other question of law or procedure at
any meeting or proceedings of the Board.
Use of seal
6. (1) The seal of the Board is to be --
(a) in a form determined by the Board;
10 (b) kept in such custody as the Board directs; and
(c) used only as authorized by the Board.
(2) The seal of the Board is to be affixed to a document in the
presence of the president and one other member of the Board and each
of them must sign the document to attest that the seal was so affixed.
15 Register of applications
7. The executive officer is to keep a register in a form approved by
the Board containing particulars of all applications for recognition
certificates and the determination of those applications.
18
Gender Reassignment Bill (No. 2) 1997
Sch. 2
SCHEDULE 2 -- AMENDMENT OF EQUAL
OPPORTUNITY ACT 1984
[Section 27]
Interpretation
5 1. 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.]
10 Long title amended
2. The long title to the principal Act is amended by inserting after
''harassment'' the following --
'' or, in certain cases, on gender history grounds ''.
Section 3 amended
15 3. Section 3 (a) of the principal Act is amended by deleting ''or age''
and substituting the following --
'' , age or, in certain cases, gender history ''.
Section 4 amended
4. Section 4 (1) of the principal Act is amended by inserting in the
20 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 1997 or a certificate which
25 is an equivalent certificate for the purposes of that
Act;
''.
19
Gender Reassignment Bill (No. 2) 1997
Sch. 2
Part IIAA inserted
5. After Part II of the principal Act, the following Part is inserted --
''
PART IIAA -- DISCRIMINATION ON GENDER
5 HISTORY GROUNDS IN CERTAIN CASES
Division 1 -- General
Interpretation
35AA. (1) For the purposes of this Part, a person has a
gender history if the person identifies as a member of the
10 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.
15 Discrimination on gender history grounds
35AB. (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
20 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.
25 (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
20
Gender Reassignment Bill (No. 2) 1997
Sch. 2
(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'')
5 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
10 (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
15 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.
20 Division 2 -- Discrimination in work
Discrimination against applicants and employees
35AC. (1) It is unlawful for an employer to discriminate
against a gender reassigned person on gender history
grounds --
25 (a) in the arrangements made for the purpose of
determining who should be offered employment;
21
Gender Reassignment Bill (No. 2) 1997
Sch. 2
(b) in determining who should be offered
employment; or
(c) in the terms or conditions on which employment
is offered.
5 (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;
10 (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
15 (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
20 employment to perform domestic duties within a private
household in which the employer resides.
Discrimination against commission agents
35AD. (1) It is unlawful for a principal to discriminate
against a gender reassigned person on gender history
25 grounds --
(a) in the arrangements the principal makes for the
purpose of determining who should be engaged
as a commission agent;
22
Gender Reassignment Bill (No. 2) 1997
Sch. 2
(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.
5 (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
10 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
15 position as a commission agent;
(c) by terminating the engagement; or
(d) by subjecting the commission agent to any other
detriment.
Discrimination against contract workers
20 35AE. 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;
25 (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
23
Gender Reassignment Bill (No. 2) 1997
Sch. 2
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.
5 Partnerships
35AF. (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 --
10 (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
15 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
20 (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
25 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;
24
Gender Reassignment Bill (No. 2) 1997
Sch. 2
(b) by expelling the partner from the partnership; or
(c) by subjecting the partner to any other detriment.
Professional or trade organizations etc.
35AG. (1) This section applies to an organization of
5 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
10 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
15 (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
20 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,
25 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
30 (c) by subjecting the gender reassigned person to
any other detriment.
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Qualifying bodies
35AH. 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
5 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
10 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
15 (c) by revoking or withdrawing the authorization or
qualification or varying the terms or conditions
upon which it is held.
Employment agencies
35AI. It is unlawful for an employment agency to
20 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
25 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.
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Division 3 -- Discrimination in other areas
Education
35AJ. (1) It is unlawful for an educational authority to
discriminate against a gender reassigned person on gender
5 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
10 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 --
15 (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.
20 Access to places and vehicles
35AK. 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
25 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;
27
Gender Reassignment Bill (No. 2) 1997
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(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
5 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
10 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.
15 Goods, services and facilities
35AL. 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 --
20 (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
25 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
30 person provides the gender reassigned person
with those goods or services or makes those
facilities available to the gender reassigned
person.
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Accommodation
35AM. (1) It is unlawful for a person, whether as
principal or agent, to discriminate against a gender
reassigned person on gender history grounds --
5 (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
10 (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.
15 (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,
20 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
25 (c) by subjecting the gender reassigned person to
any other detriment in relation to
accommodation occupied by the gender
reassigned person.
29
Gender Reassignment Bill (No. 2) 1997
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(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
5 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
10 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
15 (b) accommodation provided by a religious body.
Land
35AN. (1) It is unlawful for a person, whether as
principal or agent, to discriminate against a gender
reassigned person on gender history grounds --
20 (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
25 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.
30
Gender Reassignment Bill (No. 2) 1997
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Clubs
35AO. (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
5 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
10 (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
15 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;
20 (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
25 club;
(d) by depriving the member of membership or
varying the terms of membership; or
(e) by subjecting the member to any other
detriment.
31
Gender Reassignment Bill (No. 2) 1997
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Discrimination in sport on gender history grounds
35AP. (1) It is unlawful for a person to discriminate
against a gender reassigned person on gender history
grounds by excluding that person from --
5 (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 --
10 (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
15 history.
Application forms etc.
35AQ. 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
20 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
25 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.
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Gender Reassignment Bill (No. 2) 1997
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Superannuation schemes and provident funds
35AR. It is unlawful for a person who provides a
superannuation scheme or provident fund to discriminate
against a gender reassigned person on gender history
5 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
10 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 --
15 (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
20 (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
25 having regard to any other relevant factors.
''.
Section 74 amended
6. After section 74 (3) of the principal Act the following subsection is
inserted --
30 '' (3a) Gender reassigned persons shall not be regarded
as constituting a class or type of applicant for the purposes
of subsection (2).
''.
33
Gender Reassignment Bill (No. 2) 1997
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Section 80 amended
7. Section 80 of the principal Act is amended --
(a) by inserting after ''age'' where it first occurs the
following --
5 '' eliminating discrimination against gender
reassigned persons on gender history grounds,
'';
(b) in paragraph (b) (i), by inserting after ''age'' the
10 following --
'' and elimination of discrimination against gender
reassigned persons on gender history grounds
'';
15 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
20 history grounds
''.
Section 140 amended
8. Section 140 of the principal Act is amended after paragraph (a) by
deleting ''and'' and inserting the following --
25 ''
(aa) to eliminate and ensure the absence of discrimination
in employment against gender reassigned persons on
gender history grounds; and
''.
30 Section 146 amended
9. 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
35 in employment against gender reassigned persons on
gender history grounds; and
''.
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Gender Reassignment Bill (No. 2) 1997
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Consequential amendments
10. (1) Each of the following provisions of the principal Act --
(a) section 5;
(b) section 67 (1) (f);
5 (c) section 135 (1);
(d) section 135 (2); and
(e) section 137,
is amended by inserting after ''II,'' the following --
'' IIAA, ''.
10 (2) Section 156 of the principal Act is amended by inserting after
''34 (4),'' the following --
'' 35AR (aa), ''.
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