The Law Handbook 2024

278 Section 4: Relationships, families and young people Discrimination Discrimination on the grounds of ‘gender identity’, ‘lawful sexual activity’ and ‘marital status’ is prohibited under Victorian law. As a result of the SLAR Act, ‘marital status’ now includes being a ‘domestic partner’ that is irrespective of gender for the purposes of the Equal Opportunity Act 2010 (Vic) (‘ EO Act ’). Legislation that excludes or is plainly limited to, certain classes of people or relationships is not a kind of discrimination that can be challenged under the EO Act. On the other hand, if, for example, a childcare centre refused to accept the child of an unmarried individual or of people in a domestic relationship, the EO Act may be of assistance. The EO Act contains some religious exemptions to discrimination; for example, in sections 82 and 83. In determiningwho should be offered employment and the conditions of that employment, section 14 of the Sex Discrimination Act 1984 (Cth) makes it unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status. Also, complaints about discriminatory state legislation can be successful where it can be shown that there has been a contravention of a Commonwealth anti-discrimination law (see Jenni Millbank (1997), ‘Every Sperm is Sacred?’, Alternative Law Journal , 22(3), pp. 126–9; www.altlj.org) . In Sinopoli v Harrison (Human Rights) [2017] VCAT 355, VCAT decided that a clinical decision based on medical evidence may be right or wrong as a clinical decision but is not unlawful treatment. In this matter, the doctor’s decision to not offer treatment due to the risks involved was found to not be unlawful discrimination. VCAT held that it is not unlawfully discriminatory to withhold medical treatment if it is too risky or of no benefit. This decision could be significant in the context of treatments for gender dysphoria, where a risk–benefit analysis is undertaken by the treating physician. Assisted reproductive treatment The ART Act, which was fully functional by 1 January 2010, allows individual women, and women in heterosexual and lesbian relationships, to access assisted reproductive technology ( ART ). The ART Act covers the following: • A woman and her partner (if any, of either sex) can access ART to have a child if the woman is ‘unlikely to become pregnant’ or ‘unlikely to be able to carry a pregnancy’ without assistance (s 10(2) ART Act). Women who are at risk of transmitting a genetic abnormality or disease to a child born without assistance can also access ART (s 10(2)(c)). Previously, this clause limited access to ART to women who, for medical reasons, could not carry and deliver children, and thereby excluded single women and lesbian couples (see McBain v Victoria [2000] FCA 1009). • Before receiving ART treatment, a woman and her partner (if any, of either sex) must receive counselling about consenting to the use of ART treatment (s 13 ART Act). • If a birth mother has a partner at the time of the procedure who consented to using ART treatment, the partner is deemed to be a legal parent of the child; the partner is registered on the child’s birth certificate as a legal parent. • In situations concerning a single woman or a lesbian couple, the man who produced the donor sperm is presumed to not be the father, regardless of whether or not he is known to either woman; this presumption is irrebuttable (s 10C(2) SoC Act). • Where donor sperm is used, the donor’s name must be given to Births, Deaths and Marriages Victoria ( BDM Victoria ); this information may be disclosed to the child, the parents, the child’s descendants, or to the donor, by applying to BDM Victoria (see ‘Contacts’ below). On 10 June 2020, the Assisted Reproductive Treatment Amendment Act 2020 (Vic) came into force. This Act amended the ART Act by removing requirements for criminal records and child protection orders to be checked before a woman can undergo treatment. On 19 October 2021, the Victorian Government passed the Assisted Reproductive Treatment Amendment Act 2021 (Vic) (‘ARTA Act’) to: • expand the class of persons permitted to carry out artificial insemination; • amend requirements for persons providing counselling; • clarify the interpretation of the requirement for donor consent; • provide for consent to a treatment procedure to be withdrawn on separation of a woman and her partner;