Case study Victimisation Finn is a trans man. He recently lodged a complaint with the Commission. In his complaint Finn alleges that the archery association that he is a member of has unlawfully discriminated against him on the basis of his gender identity. Since lodging his complaint, the association’s president has indicated to Finn that, despite him being the best archer, ‘it will be very difficult’ to select Finn for the state team because of the complaint. The president has the final say on the composition of all state teams. This suggestion that Finn will be subjected to a detriment (not being selected for a team) because of the complaint he has made is likely to amount to victimisation. It is unlawful to victimise a person under the Act. 4.7 Who is legally responsible under the Act? 4.8 What about state and territory laws? Legal responsibility—often described as liability— determines who has to pay compensation or take other actions because of a finding of unlawful discrimination or sexual harassment. In addition to the provisions of the Act, as the federal anti-discrimination law, sporting organisations also have legal obligations under state and territory anti-discrimination legislation. These Guidelines do not cover the obligations that sporting organisations have under state and territory legislation. Discrimination Both an individual or an organisation who discriminates against an individual, and a person who aids or permits the unlawful discrimination, can be held liable under the Act.62 It is also important to note that a sporting organisation can be vicariously liable for the actions of their employees or agents where these amount to unlawful discrimination, or an unlawful request for information.63 Sexual harassment and victimisation The person who sexually harasses or victimises another person is liable for their own actions. An employer may also be liable where an employee, acting in connection with their employment, sexually harasses another person. An employer will not be liable if it is established that the employer took all reasonable steps to prevent the sexual harassment.64 The Act does not exclude the operation of state and territory anti-discrimination legislation that is capable of operating alongside the Act.65 This means that state and territory anti-discrimination legislation might impose different, or stricter, obligations. A person is not entitled to make a complaint to the Commission in relation to unlawful discrimination if they have already: • made a complaint • instituted a proceeding, or • taken any other action, in relation to the same act or omission under the law of a state or territory which deals with the same matter.66 Guidelines for the inclusion of transgender and gender diverse people in sport • 2019 • 29