Gender Identity in the Workplace

Every-one is talking about Caitlyn Jenner (formerly known as Bruce Jenner). This global conversation has put the spotlight on gender identity and serves as a reminder that it is against the law to discriminate against any-one in the workplace because of their actual or assumed sexual orientation or their gender identity.

Australian law protects all employees from discrimination at all stages of employment including recruitment, workplace terms and conditions and termination of employment.  This protection extends to transgender employees. Transgender means any-one who lives, has lived, or wants to live as a member of the opposite gender (sex) to their birth gender. A person may identify as a member of a particular gender by the way they dress, a name change or medication intervention (e.g. hormone therapy), counselling or sex reassignment surgery.gender identity

Therefore, under Australian law, all employers must treat all employees fairly despite their gender identity. It doesn’t matter whether the employee has had a ‘sex change’, whether they are or are not taking hormones or whether they live as their preferred gender. Essentially, you should treat the employee in the way they wish to be treated vis a vis their gender identity. For example, a transgender may still wish to be addressed as their original gender, or they may wish to be known as their preferred gender. They may even wish to set an official date from which they will always be known as their preferred gender. It depends on the individual and their wishes ought to be respected.

If an employee decides to undertake a ‘change over’ into their preferred gender whilst in your employment, it is best to ask them how they wish to be treated and then abide by their wishes. More importantly, ask the employee how they wish to handle the transition period with their colleagues e.g. some may wish to talk about the ‘change over’ with their colleagues, or they may want management to talk to their colleagues about the ‘change over’ for them. Some employees may want a period of leave before coming back as their preferred gender. The ‘change over’ period must be handled delicately and sensitively, and always in consultation with the transgender employee.

It is management’s legal responsibility to make sure, to the best of their ability, that no-one (including transgender employees) is harassed when working for them. If a colleague refuses, for example, to work with a transgender employee, or refuses to be supervised by a transgender employee, or even refuses to share toilets with a transgender employee, this amounts to transgender harassment and is against the law.

It is imperative that all employers set guidelines as to what is acceptable and professional workplace behavior. Additionally, employers need to implement grievance procedures to deal with all types of harassment and discrimination (including transgender discrimination). All employees need to be advised and educated that transgender harassment is unacceptable in the workplace and is also against the law. Ongoing transgender harassment and discrimination will result in disciplinary action.