HR Support Services

Is discrimination towards transgender people against the law?

Yes. It is generally against the law to discriminate against or harass people because:

They are transgender, gender diverse or gender questioning
You think they are transgender
They have a relative or associate who is (or you think is ) transgender

In the same way as with other types of unlawful discrimination, (race discrimination, sex discrimination, and so on), transgender discrimination and harassment are only against the law in relation to employment, service delivery, government education, registered club membership and the provision of any type of rental or holiday accommodation.It is also against the law to publicly vilify people for being transgender. For more information about transgender vilification please visit the N.S.W. Anti-Discrimination Board website.

What does this law mean for employers and service providers?

It means that you must treat all transgender people fairly. It does not matter whether they have or haven't had "sex-change" or other surgery. It does not matter whether they are or aren't taking hormones. It does not matter why they are transgender. It does not matter what gender they were at birth, or what gender they prefer to be. It does not matter whether they already live as their preferred gender, or whether they are in the process of "changing over" to their preferred gender ("transitioning"). If they fit the definition of transgender given above you must treat them fairly.The general rule is that you should treat transgender people in the same way as you would treat anyone else. In most cases, this means that you should treat transgender people in the way they wish to be treated. In other words, if they want you to treat them as the opposite gender to their birth gender that is what you should do.There is more information about the exact legal rights of transgender people - including who is counted legally as being their preferred gender and who isn't, in the N.S.W. Anti-Discrimination Board fact sheet.

The rest of these guidelines answer the most common questions employers and service providers ask us about transgender discrimination. If your question isn't answered either here or in the "transgender discrimination" fact sheet please contact the Anti-Discrimination Board.

for advice. You don't have to give us your or your organisation's name when you contact us.

Must I treat someone who is transgender as the gender (sex) of their choice?

If your employee or customer or client is transgender or decides to "change over" into their preferred gender while working for or doing business with you, it is best to ask them how they wish to be treated and then abide by their wishes. For example, a transgender person may still wish to be addressed as their original gender, or they may wish to be known as their preferred gender. They may wish to set an official date from which they will always be known as their preferred gender. It depends on the individual.

It's important to check with the particular person first and not make assumptions. If they are in the process of "transitioning" ("changing over" to their preferred gender), it is important to ask them how they wish to handle this with their colleagues or your staff. Some may wish to talk with their colleagues / your staff themselves, or they may want you to do this for them. Some may want to have a period of leave before coming back as their preferred gender. You can get more information on how best to handle transitioning from the Gender Centre or the N.S.W. Anti-Discrimination Board.

If you have a dress code, it must apply to men and women fairly. In general, someone who is transgender should be allowed to wear the clothing or uniform of their preferred gender.

How do I stop other staff from harassing transgender staff?

Prevention is better than cure! It is management's legal responsibility to make sure, to the best of their ability, that no one - including transgender people - are harassed when working for them. If other members of staff refuse to work with, be supervised by, or share toilets with transgender or gender diverse people, or if they harass transgender people, call them names, or refuse to use their preferred name or gender, this would be harassment, and against the law.

This means that you need to set a standard for what is acceptable and professional work behaviour and what isn't. You should implement grievance procedures to deal with all types of harassment, including transgender harassment. Staff must be advised that harassment is not only unacceptable in your workplace, but also against the law and that disciplinary action will be taken against them if the harassment continues.

For more information on how to prevent and deal with harassment ask the Anti-Discrimination Board for their harassment in the workplace guidelines.

Do I have to employ a transgender or gender diverse person ?

In general, all job advertisements, jobs, apprenticeships and traineeships must be open to anyone who is transgender, in the same way, that they are open to anyone else.

Transgender people must be assessed on their merits against the specific criteria for the particular job in the same way as all other applicants.

You must not dismiss someone for being transgender, or for deciding to "change over" to their preferred gender while working for you - unless the job is legally only open to people of their birth gender, and then you can only dismiss someone once they have a birth certificate or recognition certificate in their new gender. In all other cases, transgender people can only be dismissed for the same reasons that anyone else can be dismissed - for example, for ongoing poor work performance, serious misconduct, medical reasons that mean they're no longer fit enough to do the job, or redundancy.

Workplace Policy

Most organisations will have in place a policy to ensure that equity is maintained in the workplace. Such policies might ideally include an equal and fair opportunity for all prospective and existing employees in terms of; employment, promotion, transfer, training and conditions of service: regardless of race, colour, religion, gender, transgender status, nationality, age, family responsibility/parenthood, pregnancy, political affiliation, criminal record, marital status, lifestyle or sexual preference, physical or intellectual disability/impairment and H.I.V. status.

The application of such policy should aim to recognise and encourage employees solely on the basis of their abilities, aptitudes, performance, qualifications and skills.

Transgender People in Transition

Where an employee of your organisation advises you of their intention to transition, the following guidelines will assist in providing a safe and supportive environment for the individual concerned and all other staff members. (Note: the employee may or may not have canvassed their decision with some staff members before approaching management.)

Once advised management should discuss the situation in full with the employee to become aware of their issues and concerns. It is then advisable to seek expert advice and information. The Gender Centre can assist with questions relating to gender issues and the Anti-Discrimination Board of N.S.W. can provide legal advice. (Training Workshops can be arranged through both organisations).

Discussions with the employee should not be seen as an opportunity to attempt to dissuade them from their decision. Whilst management may find the disclosure surprising and unexpected it is important to be aware that the employee will probably have spent a number of years arriving at their decision.

Once management is fully conversant with the situation they should organise with the employee appropriate time frames leading up to the transition. These should be adequate to allow the implementation of a staff awareness program to prepare all staff members for the transition.

It is often useful to set the date of transition for the employee at the point of return from a period of leave. This helps to reduce any levels of confrontation that staff may experience on first meeting the "new" person.

Management should notify all staff members, (and relevant union organisations through delegates or the joint consultative committee) in writing of the employee's intended transition. This document should be prepared sensitively, reflecting the Workplace Policy and clearly indicating management's support. The best way to achieve this is to approach the issue matter-of-factly with a clear emphasis on management policy to treat all employees with respect and dignity.

The document should also include advice on how to appropriately treat and address the individual concerned. These should include:

The new name under which the employee will be known;
Use of appropriate gender references. (She, her etc if transitioning to female; him, he etc. if transitioning to male. Emphasis should be placed on the unacceptability of offensive references such as "it".);
Access to appropriate facilities (Toilets / Change rooms of chosen gender);
To be generally treated in the same way as all other members of staff belonging to his / her chosen gender (In no way should they be subject to harassment, snide remarks or jokes.);
Open lines of communication between management and staff, including the transitioning individual, should be maintained. Staff should be encouraged to discuss with management any issues of concern that may arise. If there are concerns it is easier to resolve them if they are addressed promptly; and
Where management succeeds in addressing all aspects of transition matter-of/factly and with a minimum of fuss, impact on the organisation's operations should prove negligible.

Aims

That the process has minimal impact on all concerned and on workplace efficiency;
That the transitioning employee is treated with respect and dignity;
That any staff concerns are addressed;
That the workplace remains free of harassment or unfair treatment; and
That staff will quickly adjust to employing correct name and gender references.

Post Transition Phase

It is advisable to conduct a review of the process within three months of the original transition date, to ensure that aims have been met. If not, further training or reminder memos may assist in rectifying any continuing issues.

It is also worth noting that people transitioning will always be pre-operative (i.e. they will not have had surgical intervention though they will probably be undergoing hormone treatment). The option to have Sexual Reassignment Surgery remains the decision of each individual and does not affect their status.

However, if the employee elects to have surgery and this becomes known to others, it can possibly raise some emotive issues for other staff members. This may be the case even if the original transition phase was comfortably handled. Management should be aware of the possibility of this outcome eventuating and be prepared for further consultation or training if this occurs.

For more information and to organise training tailored to your workplace contact The Gender Centre on 9569-2366.