4.1 What is discrimination on the basis of sex or gender identity? Under the Act, discrimination on the basis of sex or gender identity can include both direct and indirect discrimination. ‘Direct discrimination’ occurs when a person is treated less favourably than another person on the ground of: • sex or gender identity, or • a characteristic generally associated with a person of that sex or gender identity in circumstances that are the same or not materially different.16 An example of direct discrimination would be a sporting organisation refusing a trans woman’s application for membership because she is transgender. ‘Indirect discrimination’ can be less obvious. Indirect discrimination occurs when a condition, requirement or practice that applies to everyone, disadvantages persons of a particular sex or gender identity, and the condition, requirement or practice is not reasonable in the circumstances.17 What does ‘reasonable’ mean? The Act provides that the following matters are to be taken into account when deciding whether a condition, requirement or practice is reasonable: • the nature and extent of the disadvantage • the feasibility of overcoming or mitigating the disadvantage, and • whether the disadvantage is proportionate to the result sought.18 An example of indirect discrimination might be a sporting organisation requiring a birth certificate upon registration, and not accepting any alternative form of documentation to verify a person’s gender. This may disadvantage transgender and non-binary players if their birth certificate does not align with their gender identity. If reasonableness could not be established, the sporting organisation might be at risk of a successful discrimination claim. 4.2 When is it unlawful to discriminate? (a) Overview The Act makes discrimination unlawful in particular areas of public life. Unless an exemption applies or the different treatment amounts to a special measure, it is unlawful to discriminate on the basis of sex or gender identity, including in relation to: • the provision of goods, services and facilities19 • club membership and benefits, for members and applicants for membership.20 It is also unlawful to request information from a person for the purpose of discriminating against them.21 What is a ‘club’? Under the Act, a ‘club’ means an association of 30 or more people associated together for social, literary, cultural, sporting, political, athletic or other lawful purposes, that: • provides and maintains its facilities wholly or partly from its own funds, and • sells or supplies liquor for consumption on its premises.22 Guidelines for the inclusion of transgender and gender diverse people in sport • 2019 • 17