Everyone
Discrimination against transgender people
A person’s gender identity and expression are part of who they are, not a lifestyle choice. Transgender people should be protected from discrimination in employment.
Employment protections for transgender people
Prohibition of discrimination on the grounds of sex under the Human Rights Act 1993(external link) includes the grounds of gender identity.
Transgender people are protected under the Human Rights Act 1993 from unlawful discrimination on the grounds of gender identity in the workplace. The Employment Relations Act 2000 gives employees and employers a duty to treat each other in good faith, which includes an obligation to communicate openly and try to deal with any issues that affect their employment relationship.
Dismissal or refusal to hire
A person’s gender identity and expression are part of who they are, not a lifestyle choice. A transgender person is not being deceptive or dishonest if they do not disclose their gender identity. They do not have to, and they may not be sharing personal information, because of fear that they will be discriminated against.
An employer cannot, just because a person is transgender:
- refuse to hire them due to a belief they would not fit in
- move them away from frontline work (unless they ask or agree)
- dismiss them
- pressure them to resign by changing their working conditions.
Any of the situations above may provide grounds for a complaint of discrimination based on sex under the Human Rights Act 2003 or, in the case of an employee, a personal grievance under the Employment Relations Act 2000 (including for a new employee on a trial period of up to 90 days).
In some specific employment situations, an employer can lawfully treat job applicants or employees differently based on sex (for example, by having men-only and women-only positions). Where treating people differently based on sex is lawful (that is lawful discrimination), the employer should treat a trans woman (male to female) the same as other women, and a trans man (female to male) the same as other men.
More information
Agender New Zealand
- 0800 AGENDER (0800 2436337)
- agender.org.nz(external link)
Human Rights Commission
- InfoLine phone: 0800 496 877
- Human Rights Commission(external link)
New Zealand Council of Trade Unions
Diversity Works New Zealand (formerly the Equal Employment Opportunities Trust)
Standards New Zealand
Transgender employees
Managers and workmates must act lawfully and should support transgender employees who are transitioning or intending to transition or are having issues at work.
The Human Rights Commission Inquiry into Discrimination Experienced by Transgender People in 2008(external link), confirmed that trans people face significant discrimination in day-to-day life. Most submissions about discrimination focused on employment.
Transitioning at work
Gender transitioning is a unique and personal experience.
Employees should discuss with their employer what steps they intend to take within the workplace and what this means for other employees and possibly clients. The employee can bring a A union is an organisation that supports employees in the workplace by acting as an advocate for them collectively (and with the consent of the employee, individually). Unions bargain for collective employment agreements with employers and help employees with information and advice about work-related issues.
It is good practice to develop these steps into a written action plan so that the employer and employee can agree on how to manage any issues around the employee’s transition and how the employer may support the employee. It might include identifying what information is relevant (and that personal medical details do not fall into that category), who needs to be told and how and when they will be informed. It can be useful to discuss a possible timeline including any dates when the employee would like to be:
- known by their new name, if applicable
- referred to by new pronouns
- able to adopt a workplace dress code matching their gender identity
- able to use facilities such as restrooms and changing rooms matching their gender identity, and
- able to take time off work for medical treatment relating to their transition, if necessary.
It is important that the employer sets a good example to other employees and is supportive and reassuring during the employee’s transition. This will help the employee to carry on with their job as usual.
Transitioning and other employees
The employer should discuss with the employee how to inform other employees. The transitioning employee should decide how much and what information other employees will be told. Other employees should be informed of the situation and the employer’s expectations of their behaviour. Properly informing other employees helps to stop misunderstandings and rumours and discourages inappropriate behaviour, discrimination, harassment or bullying.
If an employee has any concerns, it is important that the employer resolves them fairly and quickly. The employer should emphasise that any workplace policies relating to trans employees are not special rights or privileges. The employer should explain that such policies ensure that all employees are treated with respect, and are not subject to harassment or discrimination, regardless of sex, age, ethnicity, gender identity or sexual orientation.
Workplace policies and procedures
Transitioning and customers
In most cases, interacting with a trans employee will not be an issue for customers. If a customer raises concerns, the employer should confirm that the employee is a valuable member of their organisation and that their gender identity or expression has absolutely no effect on their ability to perform their job.
Name and records
The employer should ask what name and pronoun the employee wishes to use. If the employee wants to formally change these details in the workplace, the employer should arrange for details to be changed on all workplace records (for example identification cards, email, phone lists, payroll), including any past records.
Dress code
The employee should be able to wear the dress code style that matches their full-time gender presentation and gender identity, and this should be the same as people of the same gender performing the same work. Employers should avoid having a dress code based on gender stereotypes and should enforce any dress code consistently.
Use of the bathroom and changing facilities
The use of facilities that match their gender identity is particularly important for trans people. It is part of the ‘Real Life Experience’ that is considered when health professionals assess whether someone is ready to medically transition.
An employee should be able to use facilities that match their gender identity, for example: trans women should be able to use a women’s toilet, and trans men should be able to use a men’s toilet.
While a unisex toilet is a positive way to ensure facilities are inclusive (and may be more comfortable for a trans person early in their transition), a trans employee should not be stopped from using the appropriate single-sex toilet.
If a trans employee prefers to use a single-sex toilet, an employer may wish to include this in the agreed action plan, including a process for informing other employees, and stressing that all employees, including trans employees, have the right to expect privacy and safety when using these facilities.
Medical transition
Not all trans people will transition medically, or through surgery. The immediate medical needs of an employee who intends to transition are most likely to be for counselling appointments or to see a medical specialist. Any leave should be treated by the employer the same as any other medically necessary appointments for any other employees. There may be special provisions in an employment agreement that clarify sickness or medical leave, or access to an Employee Assistance Programme or other counselling support. Employees may use their entitled Sick leave is paid time off work if the employee, their spouse, partner, dependent child or other person who depends on them is sick or injured. A minimum of 10 days sick leave is available each year.
Sex: A person’s biological and physical make-up, defined usually as either ‘male’ or ‘female’ and including indeterminate sex.
Gender: The social, and cultural construction of what it means to be a man or a woman, including roles, expectations and behaviour.
Gender identity: A person’s internal, deeply felt sense of being male or female (or wherever they find themselves on the gender continuum). A person’s gender identity may or may not correspond with their sex.
Gender expression: How someone expresses their sense of masculinity and/or femininity externally.
Trans people: People who refer to themselves, among other terms, as transsexual, male-to-female, female-to-male, transgender, whakawahine, fa’afafine or tangata ira tane.
Transgender: A person whose gender identity is different from their physical sex at birth.
Transsexual: A person who has changed, or is in the process of changing, their physical sex to conform to their gender identity.
Transitioning: Steps taken by trans people to live in their gender identity. These often involve medical treatment to change one’s sex through hormone therapy and may involve gender reassignment/realignment surgeries.
FtM/trans man: Female to Male – someone born with a female body who has a male gender identity.
MtF/trans woman: Male to Female – someone born with a male body who has a female gender identity.
Fa’afafine, Fakaleiti, Akava’ine, Mahu, Vaka sa lewa lewa, Rae rae, Fafafine: Pasifika terms describing someone born with a male body who does not have a male gender identity and often, but not always, lives as a woman. These terms are best understood within their cultural context.
Whakawahine: Māori term describing someone born with a male body who has a female gender identity.
Tangata ira tane: Māori term describing someone born with a female body who has a male gender identity.