- (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identify if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
34 The effect of s 8 is that conduct that occurred for more than one reason can still be caught as direct discrimination under s 5B(1), conduct will be “by reason of” a matter referred to in paras (a) to (c) if it was the only, or one of two or more reasons for that conduct, whether or not it was the dominant or substantial reason for that conduct.
35 Section 22 proscribes discrimination in the supply of goods and services on a number of grounds, including gender identity:
22 Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
- (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
- (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
- (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
36 Section 5B(3), reproduced above, provides that s 5B applies subject to ss 7B and 7D:
- (a) Section 7B provides a reasonableness test in relation to conduct otherwise constituting indirect discrimination as defined by s 5B(2), whereby that conduct will not be discriminatory if the condition, requirement or practice is reasonable in the circumstances, considering the matters set out in s 7B(2):
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
