Discrimination is against the law, so how can there be exceptions to the rule?

The law says everyone must be treated equally, so how is it women-only gyms and men-only clubs are still allowed to exist?

What is discrimination under the law and how does that apply in Australia?



The question came into focus this week after a Sunshine Coast surf club revealed it had relaxed its dress code to allow men wearing singlets inside.

Members of the Coolum Beach Surf Club were told that by allowing women to dress a certain way but not men, it was open to allegations of sexism and potentially a discrimination claim.

Club manager Mal Wright said the policy was "clearly sexist" and needed to change, and his club was not the only one taking another look at the rules.

So what does the law say?

In simple terms, the law says you are not allowed to treat someone differently based on "attribute".

Think sex, age, race, beliefs, sexuality, family responsibilities, political beliefs or pregnancy.

There are also two main types of discrimination — direct and indirect.

Direct discrimination is when someone is treated "less favourably" because of an attribute.

Like if you are refused a home to rent because you are tall and the landlord thinks tall people make trouble.

It counts as discrimination even if does not bother the person involved.

Indirect discrimination is more subtle.

This week, Optus launched an internal investigation into a job ad calling for 'Anglo Saxon' staff at one of its Sydney stores.

It had breached company policy and was obviously a mistake.

But if a firm decided it would only hire people under 180cm tall for no specific reason, that could also be discrimination.

Or it could be something more subtle, like requiring a staff member to wear a uniform including a cap that infringes on their religious beliefs.

Yet both of those last two examples could be allowed for health, hygiene or safety reasons.

What about exceptions to the rule?

So why do men and women in the military have different haircuts, and there are such things as female-only gyms?

Basically it's complicated, according to Anti-Discrimination Commission Queensland acting president Neroli Holmes.

She said there were plenty of examples that seemed like double standards.

Sometimes these are actual cases of sex discrimination that have been exempted by law.

In other cases, discrimination still exists because nobody has complained about it.

Ms Holmes said some of the commission's more common complaints were about "singlets, sandals, jewellery", particularly when it came to entering clubs or nightclubs.

In one New South Wales case, a male service station worker won a discrimination claim after being sacked for wearing an earring to work.

In a classic Commonwealth case, a man had his case dismissed after claiming a military-style haircut was discriminatory if women were not required to have the same.

What counts as discrimination?

Gyms that refuse entry to men are an example of direct discrimination, but in this case the law is on the gyms' side.

That is because the Anti-Discrimination Tribunal has ruled some can be excepted from the rule.

The tribunal was convinced that women who need to access these health services might not walk in the door if men are inside.

Ms Holmes said the gyms might have programs to help women reduce incontinence through pelvic floor exercises, or treat women recovering from breast cancer or other conditions with understanding.

"You can have women-only gyms and, of course, we have certain clubs and associations that are allowed to have male-only or female-only clubs. That is still permitted under the law."

Dads are parents too

The signs for parent rooms at shopping centres and pram parking bays are often illustrated with the classic female figure in a triangle dress.

In one instance on the Sunshine Coast, a father complained he was verbally abused by a woman after taking his child into a parents room.

The room had a symbol showing a woman holding a baby, but the room was unisex.

If a father is not allowed in when he is trying to a change or feed a baby, this is direct discrimination.

Ms Holmes said a father in this situation could make a discrimination claim.

If men are allowed in despite the sign showing a female figure, that's "probably" indirect discrimination.

"It's not actually stopping someone from doing something immediately unless you feel, 'I can't park in that parking bay because it only has a female sign there'," Ms Holmes said.

"People can make a complaint about that if they wish and we would certainly try to resolve that with the facility that has got that signage up."

Transgender discrimination

Ms Holmes said it was against the law to treat someone worse or less fairly because they changed their gender.

So what happens in cases where there is a male-only or female-only venue and the person at the door accidentally refuses entry based on appearance?

Apparently this is not so common.

"We don't have instances where people are genuinely confused about enforcing dress codes in that situation," Ms Holmes said.

"It's more people being unkind or discriminatory to people who are seeking to live as the opposite gender.

"Mixing it up with dress codes and going into venues is a slightly different issue to what happens in reality for people who are seeking to live as a particular gender."

Ms Holmes admitted anti-discrimination laws could be confusing.

She offered this tip: "Treat people fairly and with dignity and respect and generally that takes you a long way and you won't end up in any difficulty with discrimination laws."

Source: http://www.abc.net.au/news/2018-04-14/discrimination-laws-explained-gender-issues/9654360