Welcome to Know Your Rights, a new series from VICE Australia explaining the complicated legal stuff that makes life hard when you don't know the law
Understanding your rights at work can be a tricky and intimidating process for a lot of people. The situation can be further compounded if you’re trans and/or gender diverse, because the workplace is often another area where appearance and behaviour gets judged. As a result, trans and gender diverse people in Australia continue to face significant barriers to employment.
While there’s not a whole lot of data or research into these experiences in Australia, we do know that trans people in Australia have disproportionate difficulty in securing employment. Additionally, some report losing their job after announcing an intention to transition.
On a global level, a 2017 report by the US Commission on Civil Rights Found that almost every transgender employee in the US had experienced some form of harassment or mistreatment at their job.
These barriers and experiences are real, but if you’re trans or gender diverse and facing discrimination or exclusion at work in Australia, there are laws to protect you. Trans and gender diverse people are covered by the Sex Discrimination Act 1984 (Cth) which operates around the country, with protections replicated in local laws across the states and territories.
Broadly speaking, under the Sex Discrimination Act, it is against the law to discriminate against job applicants and employees because they are trans or gender diverse. Under the law, a current employer can’t treat you less favourably because of your gender-related identity, appearance, mannerisms, or any other characteristic associated with gender.
Legally, gender identity refers to the state of being male or female as defined by social and cultural behaviours and assumptions about identity, roles, and appearance. But it can be broader than that and include being gender-diverse.
So what does this mean for the rights of trans people at work?
You have the right to be hired
It’s against the law for an employer to decide not to hire you because you're trans. This rule seems pretty basic, but it is important to note that it’s also illegal for an employer to seek information from job applicants and employees that could be used to discriminate against them. The only time they may legally request such information is when its needed for a non-discriminatory purpose e.g. a government employer reporting on diversity statistics.
You also cannot be sacked for being trans
This may not always be clear-cut. Trans people continue to face exclusion at work, and may lose security of work when they disclose their gender identity. However if your employer has either outright sacked you, or been hostile towards you, because you’re trans, they have breached anti-discrimination laws and you can bring a complaint of discrimination against them.
You have the right to be called by your preferred pronouns and name
Employers are required to not treat trans people less favourably from any other employees. So in the same way that a cisgender person is called by their preferred name and pronouns, a trans person must be referred to by their preferred name and pronoun.
Trans people obviously still face very real restrictions in relation to obtaining proof of identity documents that reflect their preferred gender. South Australia and the ACT are the only places in Australia that have removed a requirement stating that transgender people have to have surgery to remove their reproductive organs in order to change gender on their birth certificate.
But even if an employee doesn’t have a passport or driver's licence that reflects their gender identity, they still have the right to be referred to by their preferred name or pronouns.
You have the right to use the restroom that you’re most comfortable using
There’s been a lot of harmful public discussion in the US and Australia around trans kids and their ability to use gender affirming bathrooms at schools.
The law, however, in Australia in workplaces is crystal clear. Your work is required to make sure you’re able to use whichever bathroom you prefer and it’s generally not appropriate for a trans person to be directed to use any toilet.
Lastly, you have the right to not disclose that you’re trans
There is no obligation on trans and gender diverse people to disclose their gender identity. It’s up to you and you are allowed to protect your right to disclose what you want at work, in the same way that cisgender people do not have to disclose their gender.
What to do if you think you’re being discriminated against?
The first thing is to take notes (to the extent that you can). It can be really hard to explain in a formal meeting or discussion why something that occurred impacted you or who said what, so try and take notes of any instances you felt might have been discriminatory so you have a clear account of what you may want to raise with an employer.
If you feel comfortable and safe to, speak to your employer directly about what’s happened, what impact it had on you, and what you’d like to resolve the issue. You should remember that your employer has an obligation to, as far as possible, provide you with a safe work environment. This means they should be addressing genuine complaints about discrimination and harassment. If an employer doesn’t take a discrimination complaint seriously, they could be held responsible for unlawful treatment that breaches anti-discrimination laws, so they should take complaints seriously.
If you’re scared of repercussions for speaking up, you should know that it is unlawful for your employer or anyone else to treat you unfavourably because you have complained that you’re being discriminated against. It’s victimisation and also prohibited under the Sex Discrimination Act 1984.
If the issue doesn’t resolve by talking to your employer, you can make an external complaint of discrimination but it’s best to seek legal advice before taking any steps.
If you’re reading any of this, and want more information about your rights at work as a trans person, contact the Australian Human Rights Commission or your local state or territory human rights commission.
Please note: this information is only intended as a guide to the law and should not be used as a substitute for legal advice.