Trans & feeling confused about your rights?
Work and knowing your rights - can be tricky!
While a myriad of often overly complex and oddly vague workplace policies call intranet systems worldwide home, the simple reality is this: understanding your rights at work can be tricky. The varied policies, guidelines and codes of conduct out there, can be rather intimidating. This situation is often compounded if you’re gender diverse...because a reality that many don’t want to say, is:
- that workplaces are often an area where appearance and behaviour gets judged; and
- you’re not going to find anything in writing that explicitly says how trans folks should be treated (the answer to this is: no different than anyone else!)
While the data isn’t there yet - what we’re seeing so far, shows that there’s a significant problem
And...let’s be real - while being trans isn’t anything new, coming out to talk about it - is!
Historical cases of harassment and bullying remain largely anecdotal in nature and those negatively impacted usually quit before seeking other avenues out.
We just don’t have the data points captured over decades to determine the extent or trend of said harassment in certain industries or roles occurring, more than others.
Think:
- Mining & Manufacturing versus Cheffing
- Mechanical Engineering versus Hairdressing
- Farming versus Physiotherapy
THE question! Do you have to disclose that you’re trans? If so, in what time period?
No and none.
There’s no legal obligation for trans or gender diverse people to disclose their gender identity to their employer. It’s inappropriate to ask, however humans are curious and if they don’t they’ll likely be thinking it. AND none of this changes the fact that you have no obligation to tell them.
A response as simple as:
- I prefer to keep my private life, private; or
- that’s not something I feel comfortable answering
should more than suffice and also likely help reframe the question as one that is overly personal in the workplace.
There are state and federal laws to protect you, irrespective of what your boss or anyone else at work says!
If you’re trans or gender diverse and suffering discrimination (or even what you may think is discrimination) in the workplace, you can find some comfort in knowing that there ARE laws to protect you, irrespective of whether your business has a policy surrounding gender discrimination or not.
In Australia irrespective of who you identify as, you’re covered by the Sex Discrimination Act 1984 (Cth) with varied protections reflected in local laws across the states and territories. These are kept updated and can be found here: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9899/99Rp17
This piece of legislation states that it’s against the law to discriminate against employees or those applying for jobs, because they are trans or gender diverse. Under the law, your employer can’t treat you unfairly because of your:
- gender-related identity
- appearance
- mannerisms; or
- any other characteristic associated with gender
Your employer can’t seek information from job applicants that could be used to discriminate against them.
The only exception to this is where the information is needed for a non-discriminatory purpose or role specific requirement (such as a women’s support worker for sexual assault victims requiring therapy or a government agency reporting on diversity statistics).
An example can be found here: https://www.wgea.gov.au/data
You can’t be fired or more importantly, everything but!
Some of our trans clients continue to voice concerns they have with exclusion at work, following the disclosure of their gender identity. Some are treated in a hostile manner: held back from exciting new projects, excluded from team activities etc.
If your employer has treated you in a harsh and hostile way or “had to let go of you” due to what one trans client said was described as a “cultural misfit” because you’re trans, they’ve breached anti-discrimination laws and you can bring a complaint of discrimination and/or unfair dismissal against them.
Fair Work have some great resources around this: https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination/gender-identity-sexual-orientation
You’re legally entitled to be called by your preferred pronouns and name
We appreciate that some trans folks face significant challenges in relation to obtaining proof of identity documents that correctly reference their gender. We work closely with our clients HR departments to ensure a smooth transition for them through the varied payroll, HR and IT record keeping systems - especially in the event that said paperwork comes with delays.
In our experience it’s not uncommon for IT and HR departments to refuse name changes...to enforce documentation-required rigidity when it comes to making any system changes.
There’s nearly always a work around - remember that, sometimes escalating your concerns and putting forward creative ideas to your Manager or HR can help create a quicker and smoother outcome for you.
These administrative systems are often outdated, it’s important to remember that most states and territories required a trans identifying individual to undergo sexual reassignment surgery and, in most jurisdictions until 2018, to divorce if married.
Even now South Australia and the ACT are the only places in Australia that have removed a requirement stating that transgender people have to have surgery (updated to include a “medical procedure”) to remove their reproductive organs in order to change gender on their birth certificate.
So...although YOU might live in an open and inclusive community, this is rather ‘new’ as far as the workplace, employment laws, rules and guidance go. We’ll get there!
Australia is NOT North America!
Yeah ok, we know you know this BUT what you might not know is that:
- although a number of companies headquartered in North America, stipulate that employees need to use the bathroom that aligns to the sex assigned to them at birth, this is not the case in Australia.
Anywhere in Australia!
Your employer is required to make sure you’re able to use whichever bathroom you prefer and it’s generally not reasonable or appropriate for your Manager or HR to be asking you about which bathroom you use or what one you should be using. Yeah - being pointed to the ‘disabled toilet’ isn’t ok either. This isn’t something you need to shamefully hide from others to maintain their level of comfort. Use the amenities you feel most comfortable with.
What to do if you think you’re being discriminated against?
Nasty words, judgemental glances, awkward stares, small snickers, overheard gossip - they’re traumatic as an understatement. It is for this very reason that recalling events, words shared, remarks made etc can prove rather challenging when you’re looking to formalise a complaint and so we strongly suggest you take the following recommendation on board…
TAKE NOTES AND PUT DETAILS IN WRITING AS SOON AS POSSIBLE AFTER AN EVENT/s TAKES PLACE
This doesn’t mean others need to know.
These notes can be private to you, until such time that you decide to escalate a concern into a complaint. This helps ensure:
- HR treat your complaint with the seriousness it deserves
- you don’t forget any important details during a time that may prove very emotional for you; and
- they can be used to support your claim later, should your complaint journey down a litigation path.
If you feel safe enough to do so, you could approach your boss or HR representative directly about:
- what has happened (try to include names, dates and times where possible)
- the impact it had on you; and
- what resolution you’d ideally like
- Examples include an apology, disciplinary actions, such as terminating the other person’s employment or having them handed a formal warning and corrective training etc.
Remember: YOUR ORGANISATION HAS A LEGAL OBLIGATION TO PROVIDE YOU WITH A SAFE WORK ENVIRONMENT. This means any and all complaints need to be:
- taken seriously
- follow a process - that is clearly communicated to you; and
- be acted upon in a timely manner.
It is UNLAWFUL for your organisation and its staff to treat you unfavourably because you’ve made a complaint of discrimination.
It’s victimisation and also prohibited under Australia’s Sex Discrimination Act 1984.
Still worried?
If you’re worried about repercussions for speaking up, you may want to reach out to us, here at Your Best You Coaching (louisewithemployease.com) or the Australian Human Rights Commission (humanrights.gov.au) or your local legal aid organisation (https://www.probonocentre.org.au/legal-help/legal-aid/) for further assistance.
Want to bounce some ideas around and speak to someone with 20+ years HR experience that has your back, has created numerous company policies and related team communications that touch on sensitive areas, conducted varied internal investigations relating to gender and discrimination concerns - then look no further Louise Spinks, our founder, is your gal!
AND...if you think these concerns remain a part of the private space, we assure you - society is changing, with this news announcement recently: Gender Identification and an Australian University
Here’s to YOUR BEST YOU!
Much love from the YBY team!
Xo
**The aforementioned information provided in this blog post serves as general guidance and should not in any way be used as a substitute for legal advice in your locality.