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Transgender discrimination - guidelines for employers and service providers

 

     

    Is transgender discrimination against the law?

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

    • they are transgender;
    • you think they are transgender; or
    • 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. More information about transgender vilification.....

    What does transgender mean?

    Transgender means that the person lives, has lived, or wants to live as a member of the opposite gender (sex) to their birth gender.

    In the past, the term transsexual was used, but people who are transgender generally prefer to use the term transgender as this is more accurate. They want to live and behave as a member of the opposite gender to their birth gender, not the opposite sexual preference. A transgender person may be heterosexual, homosexual or bisexual like anyone else.

    What does the law mean for employers and service providers?

    It means that you must treat all transgender people fairly. This is the case:

    • whether or not they have had sex change or other surgery;
    • whether or not they are taking hormones;
    • why they are transgender;
    • what gender they were at birth, or what gender they prefer to be;
    • whether they already live as their preferred gender, or are in the process of ‘changing over’ to their preferred gender (known as ‘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.

    More information about the exact legal rights of transgender people, including who is counted legally as being their preferred gender and who isn’t....

    Below are the most common questions employers and service providers ask us about transgender discrimination. If your question isn’t answered here or in the link above please contact the Anti-Discrimination Board's enquiry service for confidential 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, 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. They may wish to set an official date from which they will be known as their preferred gender. It depends on the individual.

    It’s important to check with the person first and not make assumptions. If they are in the process of transitioning, ask them how they wish to handle this with their colleagues or your staff. Some people 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 from our enquiry service.

    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.

    Do I need to change my records to reflect a transgender person’s preferred gender?

    Anyone (including a transgender person) can change their name by deed poll or statutory declaration. If a transgender person has changed their name, you should change your records to reflect this. You can ask for an official document to confirm the name change, although you don’t have to do this.

    Do I have the right to ask transgender people their gender, or to see their ID?

    This would depend on the circumstances and the reasonableness of the request. In general, you can only ask to see someone’s ID in a situation where everyone else would be asked to show their ID. In most situations, it wouldn’t be appropriate to ask questions about someone’s gender unless you are asking everyone else too. In general, it’s best to treat transgender people in the way they are presenting themselves.

    In a situation where everyone is asked to show their ID, and a transgender person shows you an ID of the opposite gender to the one they present as, you should be sensitive in your approach. All you need to do is establish that they are the same person as their ID. You do not need to ask why they choose to present differently, or to harass or insult them in any way.

    What is the situation with toilets and change rooms?

    A transgender person who has a birth certificate or recognition certificate in their preferred gender must be treated at all times as their new gender. It would be discrimination and against the law to do anything else. This means they have the legal right to use the toilets and change rooms of their referred gender.

    All other transgender people should be allowed to use the toilets or change rooms of their choice, unless this would be 'unreasonable in all the circumstances'. It is not necessary, and in most cases would be insulting and against the anti-discrimination law, to either instal special toilets or change rooms for transgender people or make them use different facilities to people who are not transgender.

    Once again, don’t make assumptions. Some transgender people may wish to use the toilets of their birth gender, while others may wish to use the toilets 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 - is harassed when working for them. If other members of staff refuse to work with, be supervised by, or share toilets with transgender people, or if they harass transgender people, call them names,or refuse to use their preferred name or gender, this would be transgender 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 transgender harassment is not only unacceptable in your workplace, but also against the law, and that disciplinary action will be taken against them if harassment continues.

    For more information on how to prevent and deal with harassment, refer to our Guidelines for managers and supervisors.

    Do I have to employ a transgender 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 other applicants.

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

    What about jobs that are targeted towards men or women only?

    Someone who is transgender has the legal right to be considered for a job that is legally targeted towards only one gender, if they have an official birth certificate or recognition certificate issued in that gender.

    If you wish, you can target a job towards transgender people only. It is not against the law to do this - as long as the job is open to all transgender people. If you wish to target a job towards either transgender women or transgender men, you should get advice from the Anti-Discrimination Board's Legal Officer first, as you will probably need to get an official exemption from the Anti-Discrimination Act before going ahead.

    Do I have to provide services for transgender people?

    You must provide all your services to transgender people in the same way as you provide them to everyone else. Transgender people must be allowed the same access to rental and holiday accommodation, government education, club membership and indeed to the vast majority of other services, as anyone else. Transgender people must not be harassed by you or any of your staff.

    If staff members refuse to serve transgender people, give them lesser or demeaning service, harass them, call them names, or refuse to use their preferred name or gender, this would be transgender discrimination, and you as a service provider could be held legally responsible for this. You should specifically tell your staff that they must treat all customers, including transgender people, fairly and that anyone who disobeys this instruction may be disciplined.

    What about services, clubs and so on, that are for men or women only?

    Someone who is transgender has the legal right to use and be admitted to a service, club or educational institution that is legally targeted at only one gender, if they have an official birth certificate or recognition certificate issued in that gender. In addition, if you decide to admit a transgender who does not have the appropriate certificate to a single sex club or educational institution, your club/institution won’t lose its single sex status just because you have done this.

    If you wish, you can target a service towards transgender people only. It is not against the law to do this - as long as the service is open to all transgender people. If you wish to target a service towards either transgender women or transgender men, you should get advice from our Legal Officer, as you will probably need to get an official exemption from the Anti-Discrimination Act before going ahead.