Gender Identity
Discrimination and harassment against a person because of their gender identity is prohibited in Victoria under the Equal Opportunity Act 1995. The Department is committed to ensuring that its workplaces are free from discrimination and harassment for all people regardless of their gender identity.
What does gender identity mean?
The Victorian Equal Opportunity and Human Rights Commission describes gender identity as ‘self-identification as a person of the relevant gender’. This includes any person who identifies as a member of the opposite gender to their birth gender. This is often referred to as being transgender.
A person may identify as a person of a particular gender, for example, by the way they dress, by changing their name or by medical intervention such as hormone therapy, counselling or sex reassignment surgery.
When is discrimination prohibited?
A person is protected from discrimination on the basis of their gender identity regardless of whether they have had or are having surgery or other medical treatment. This includes people who:
- want or plan to live, have lived or are currently living as a member of their self-identified gender;
- are currently transitioning or changing over to their self-identified gender; and/or
- adopt characteristics of their self-identified gender, for example, in the way that they dress or their preferred name.
What is discrimination?
Discrimination on the basis of a person's gender identity may be direct or indirect.
Direct discrimination on the basis of gender identity means treating a person with a particular gender identity less favourably than a person who does not have that gender identity, in the same or similar circumstances.
Indirect discrimination happens when a requirement, condition or practice that seems to apply equally to everyone, in fact discriminates against people with a particular gender identity, and that requirement, condition or practice is not reasonable in the circumstances.
In the workplace
Issues that commonly arise for transgender staff in the workplace, particularly transgender staff transitioning to their self-identified gender, include:
- the use of appropriate gender references (i.e. she or he);
- using the person’s new name;
- changing employment records to reflect an employee’s self-identified gender;
- access to appropriate facilities (eg toilets and change rooms); and
- the manner in which other staff members are informed, and to what extent.
The law recognises that an employer may need time to accommodate an employee’s transition in order to ensure a discrimination and harassment free workplace. An employer is entitled to have “adequate notice” from an employee who is seeking to affirm their self-identified gender identity. Adequate notice will give an employer time to seek expert advice, talk to the employee about their requirements, develop a workplace policy and procedures, and arrange training and other activities.
The Victorian Equal Opportunity and Human Rights Commission provides the following advice for school principals:
“I am a school principal. A teacher has informed me that they intend to transition. I’m concerned about the effect this might have on the students. Can they be excluded from working with children because of their gender identity?
No, generally speaking. However, you may require adequate notice to allow time to consult with the teacher and make arrangements regarding their teaching responsibilities and what the children are told. The Equal Opportunity Act also contains an exception which allows an employer to discriminate where the care of children is involved if the employer genuinely believes discrimination is necessary to protect the physical, psychological or emotional well-being of the children, but only if there is a rational basis for that belief. The test for whether or not a belief is rational is objective.”
A number of organisations have developed model guidelines to assist employers to successfully and appropriately provide a safe and supportive work environment for transgender employees transitioning to their self-identified gender. Managers requiring further information and assistance in relation to providing appropriately for transgender staff members can contact the Diversity Manager.
Other resources
Additional Information
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Victorian Equal Opportunity and Human Rights Commission
The Victorian Equal Opportunity and Human Rights Commission produces a series of ‘Know Your Rights’ brochures, including one on gender identity. These and other publications are available on the Commission’s website. -
Training
Staff training courses are available online. These include the Workplace Discrimination and Harassment course and the Workplace Behaviour and Bullying course.
Customised training for six or more staff can be delivered in your school or workplace by trained staff of the Victorian Equal Opportunity and Human Rights Commission. Specialist workshops can also be accessed throughout the year.
Related Topics
Contact Information
Adriana Palamara
Manager, Diversity