Transgender employees: legal tips to navigate a HR minefield

by Janie Smith16 Apr 2014
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.”


  • by Tony 16/04/2014 12:00:08 PM

    The bathroom issue is simple: they should be able to use the bathroom of their affirmed gender. However this can cause other employees discomfort so employers need to ensure there is early and considered training, support and careful communication with the immediate work group. If someone transitions at work, their transition can be a lot easier if it's supported in this way, so that others understand the issues before the 'bathroom' converstation even pops up. The Gender Centre in Sydney, and other similar groups in Victoria and other states, can advise employers on supporting workplace transitions, as can Pride In Diversity.

  • by Val 16/04/2014 2:40:14 PM

    This is good news however I understand that the ATO still requires you to tick the M or F box (and it has to be your physical gender) to get a tax file number. If however you have a passport which shows your preferred gender that's OK. I hope this changes. I fail to see how what gender you identify with impacts upon income tax. ATO - I think it's time to get with the times!

  • by Dr Tracei O'Keefe (Sexologist) 16/04/2014 9:42:47 PM

    All government departments and any other bodies will be required to comply with the Norrie rulling and provide a none male or female option "sex (non specfic)". If not they will be breach of the Sex Discrmination Act that protects all sex and/or gender diverse people :)

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