Orientations and ‘Deviations’: Sexuality in Anti-Discrimination Law

Abstract

In 2013 the Sex Discrimination Act 1984 (Cth) was amended in order to include the new ground of ‘sexual orientation’. This amendment was specifically intended to extend federal anti-discrimination protections to cover gay men, lesbian women and bisexual people for the first time. However, in the case of Bunning v Centacare (2015) 293 FLR 37 the Federal Circuit Court was asked to decide whether, as a matter of law, polyamory constituted a ‘sexual orientation’ under this new ground. This case highlights the questions that a number of academic commentators have raised in recent years about whether anti-discrimination protections around sexuality should cover a broader scope than simply homosexuality, bisexuality and heterosexuality. Drawing on this recent commentary and these new federal legal developments, this article critically analyses the problematic way in which anti-discrimination laws differentially protect some types of sexuality and not others. This article argues that such laws should cover a broader range of sexuality, including minority sexualities such as polyamory, asexuality, and sadomasochism.