Transgender employees: legal tips to navigate a HR minefield

Following the recent “Norrie ruling” in the High Court, NSW employees now have the legal right to be recognised as being neither male nor female. Would you know what to do if one of your employees changed genders?

Transgender employees: legal tips to navigate a HR minefield
A recent High Court ruling that allows people to legally identify as a category of sex other than male or female shouldn’t result in many workplace changes, says Tim Capelin, a partner at Piper Alderman.

But the question of which bathroom a person identifying as gender-neutral should use has him stumped.

“I think the bathroom issue is probably the most practical, and I don’t know what the answer to that is. It’s particularly difficult if someone presents as one gender for a period and then presents as another gender and wishes to use the bathroom for the new gender,” he says.

“There are plenty of workplaces that have unisex toilets where it wouldn’t be a practical issue, but I can see where it could be an issue where HR has to make a determination on where this person should be directed for their ablutions.”
He says HR people would need to monitor any potential bullying and harassment of gender-neutral people in the office and the existing laws against gender discrimination would still apply. 

“I think the key point for HR is that new categories of difference, when they come into the workplace, initially can create a fuss but the pre-existing responses – namely, we embrace difference and we don’t make decisions in relation to the workplace based on differences of gender – still remain the correct response.”

Things like parental leave would not be an issue because it is not based on gender, says Capelin.

“The law doesn’t talk of maternity or paternity leave really anymore, it talks about parental leave so if they’re in the role of a parent, they would still be entitled to parental leave.”

The High Court ruling comes after a four-year legal battle by a Sydney resident named Norrie to be legally recognised as being of non-specific sex.

Norrie was born male, had a sex change but does not identify as a man or a woman.

“I’m overjoyed that it has happened,” Norrie told ABC News of the ruling.

“It’s important for people to have equal rights in society and if some people are granted the right to have their sex and certain benefits that go along with that, then why shouldn’t everyone have that right? Why should people be left out because they’re not seen as male or female? They should be recognised as whatever they are and allowed to participate in society at an equal level.”

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