Although transgender people are protected by the law, many still report facing discrimination in workplaces, or when looking for accommodation or when accessing goods and services.
According to Amnesty International, transgender people face discrimination up to 60 times a day, and many of those instances can happen at work.
Like all Australians, transgender people have a right to not be discriminated against because of their gender.
In 2016-17, The Human Rights Commission received 46 complaints relating to gender and intersex issues.
What does the term transgender mean?
The term transgender or gender diverse refers to someone whose gender identity doesn’t match the gender they were born with or the gender that was assigned to them at birth.
The word “transgender” historically carries a masculine-feminine connotation, whereas the term “gender diverse” is often used by those who want more flexibility in their identity.
Being transgender is independent of sexual orientation.
Transgender people may identify as heterosexual, homosexual, bisexual, asexual, or may decline to label their sexual orientation.
The Sex Discrimination Act makes it unlawful for an employer to treat a person less favourably than another person in a similar situation because of their gender-related identity, appearance, mannerisms or other gender-related characteristics of the person, or because you have a relative, friend, associate or work colleague who is transgender.
Employers can also be held legally responsible for discrimination by their employees.
It is also unlawful to discriminate against a transgender person when they are looking for accommodation, or when they are accessing goods and services.
Who qualifies as being transgender?
You qualify as transgender if:
- you identify as the opposite gender to your birth gender and live as your identified gender
- you identify as the opposite gender to your birth gender and are seeking to live as your identified gender
- you are intersexual (born with indeterminate sex, for example with sexual parts of both sexes), and you live as your identified gender
- you are thought of as a transgender person
Importantly, you do not have to have had any sex change or other surgery to be counted as transgender.
You do not have to have taken any hormones in the past or be taking them now.
It does not matter what gender you were at birth.
It does not matter which gender is your identified gender, or why you are transgender.
It does not matter how you describe or label yourself.
What matters is how you live and behave, or how you want to live and behave.
When can transgender discrimination happen?
Transgender discrimination can happen when advertising jobs, during recruitment and selection processes, when making decisions about training, transfer and promotion opportunities, and in the terms, conditions and termination of employment.
It can happen when selecting people for rental accommodation, or when serving someone in a shop.
Who is covered by transgender discrimination law?
All types of employers and employment relationships are covered under the Sex Discrimination Act, including Commonwealth Government employees and private sector employees, full-time, part-time and casual employees, contract workers and commission agents, as well as apprentices, trainees and those on probation.
What is direct and indirect discrimination?
Discrimination can be direct or indirect.
Direct discrimination happens when a person is treated less favourably than another person in a similar situation because of their gender identity.
Indirect discrimination happens when employers put in place conditions, requirements or practices which appear to treat everyone the same, but which actually disadvantage someone people because of their gender identity.
What are your work rights?
In general, all job advertisements, jobs, apprenticeships and traineeships must be open to you, and you have the right to apply for them and be fairly considered for them.
This also applies to bodies which issue licences to perform particular jobs, for example taxi licences or registration to practice as a nurse.
The fact that you’re transgender, or someone thinks you are, must not be used to prevent you from applying for or getting a job, apprenticeship or traineeship.
You must be assessed on your merit against the criteria for the job in the same way as other applicants.
In general, you also have the same right to training, promotion and work benefits as other employees.
In general, you must not be dismissed for being transgender, or because you are in the process of changing over to the gender with which you identify.
An employer can only dismiss you for lawful reasons, in the same way as everyone else.
Being treated as your preferred gender
In general, if you are recognised as a transgender person you have the right to be treated as the gender with which you identify, and you can wear the clothes or uniform of your identified gender, use the toilets and change rooms of your identified gender.
What can you do if you are the victim of transgender discrimination?
Firstly you can raise the issue yourself with the person involved, or a manager, or supervisor or HR representative.
If not, it’s advisable to get expert advice as soon as possible from an employee advocacy firm such as Discrimination Claims which can represent you in any negotiations with your employer, and can help you lodge a complaint with the Human Rights Commission.
If you do make a complaint to the Commission, you will need to put it in writing, and it should say what happened, when and where it happened and who was involved.
The Commission will usually organise mediation between you and the person or organisation involved.
If the issue cannot be resolved, the matter can then be taken to court.
A case study
Two former Australian Defence Force Academy cadets have alleged they were discriminated against for transitioning gender during their time in Canberra.
Joel Wilson and Sarah Bowley told The Canberra Times that they were forced out of the Australian Defence Force after coming out as transgender, despite there being a policy in place to prevent abuse and bullying of transgender officers.
Mr Wilson and Miss Bowley joined Defence in 2013 and 2011 respectively.
Both studied engineering before being diagnosed with gender dysphoria.
According to The Canberra Times, in April 2014, Miss Bowley told her boss that she’d been seeing a psychiatrist for six months and was going through the gender transition process.
Miss Bowley said he returned with two options for her, leave without pay or discharge.
Within three days Miss Bowley said she was removed from training, university and her division.
Mr Wilson’s transition wasn’t easy either.
“I was pretty quickly the subject of the rumour mill at ADFA,” Mr Wilson said.
“There was social isolation and discrimination, particularly medically.
All expenses paid – not at all,” he said.
Both Miss Bowley and Mr Wilson were medically downgraded against their wishes and despite their physical ability.
In 2010, the Australian Defence Force enacted a policy committing to allowing transgender people to serve.
A Defence spokeswoman told The Canberra Times that the military was committed to creating a safe, supportive and inclusive workplace for all.
“Defence won’t comment on individual cases but we can advise that there are a range of policies and practices in place that represent a zero-tolerance approach to bullying, homophobia and transphobia,” the spokeswoman said.
But it happened too late for Mr Wilson.
He left the ADF and paid for a double mastectomy himself.
He went through the process to file complaints, but said for his own mental health he felt it was best to let it go.
Miss Bowley also left the ADF but continues to suffer from poor mental health due to her experiences during her time there.
If you believe you are the victim of discrimination in the workplace because of your gender, you may be entitled to compensation. Contact Discrimination Claims on 1300 853 837 for a confidential chat about your options.