Guidelines for employers and providers of goods,
services and accommodation
 Gender
Identity
ABOUT THESE GUIDELINES
These guidelines explain how the Victorian Equal
Opportunity Act prohibits unfair treatment and harassment
based on gender identity. They focus on key areas of public
life – employment, accommodation and the provision of
goods and services – and outline relevant legal
responsibilities. We have also included steps for preventing
discrimination and harassment based on gender identity and
Frequently
Asked Questions to help you meet these legal
responsibilities.
EVERYONE HAS THE RIGHT TO A FAIR GO
The right to a fair go (equal opportunity) is one of our
community’s fundamental beliefs. In Victoria, the Equal
Opportunity Act 1995 promotes recognition and acceptance of
this right by making it unlawful to treat someone unfairly
or harass them because of their:
- age;
- breastfeeding;
- carer status;
- disability;
- gender
identity*;
- industrial activity;
- lawful sexual activity;
- marital status;
- parental status;
- physical features;
- political belief or activity;
- pregnancy;
- race;
- religious belief or activity;
- sex;
- sexual orientation; and
- personal association with someone (such as a
friend or relative) who has (or is assumed to have)
one of these characteristics.
*only applies to
discrimination or harassment based on gender identity
which took place in Victoria on or after 9 October
2000.
Discrimination and harassment are unlawful in public
life
In Victoria, discrimination and harassment are
unlawful in:
- accommodation;
- clubs and club memberships;
- education;
- employment;
- provision of goods and services;
- disposal of land; and
- sport.
GENDER IDENTITY
Gender identity means self identification as a
person of the relevant gender. The Equal Opportunity Act
acknowledges that a person’s identification as a
member of a particular gender may be expressed by their
style of dress, medical intervention or by other means,
including a change of name. Medical intervention, in this
sense, may include any relevant attention or treatment by
a qualified medical practitioner, including hormone
therapy, counselling and sex reassignment surgery.
What the law requires
The Victorian Equal Opportunity Act requires that you
treat people fairly irrespective of their gender identity
and do not harass them, when deciding whether you will
hire them, how you treat them during their employment,
who you dismiss or make redundant, when providing goods
and services, accommodation, education, and in sport,
clubs and club memberships.
Liability for unlawful discrimination and
harassment
The Equal Opportunity Act makes it unlawful for an
employer or provider of goods and services, education or
accommodation to act in a discriminatory or harassing
way. It also makes an employer legally responsible for
employees’ discriminatory or harassing actions
unless the employer can show it took reasonable
precautions to prevent discrimination or harassment from
happening. This legal responsibility is known as
vicarious liability.
Reasonable precautions could mean having and
implementing equal opportunity policies and procedures,
including workplace policies and procedures for an
employee’s “transition” from one gender to
another, and ensuring equal opportunity training and
regular updates for all staff and management. They could
also include taking the steps described in these
guidelines.
Transition
When a person changes their presentation to affirm
their self-identified gender, the process is described as
transition.
Making the change is known as transitioning.
Goods and services
You must treat all customers fairly, irrespective of
their gender identity and provide them with goods and
services just as you would anyone else. Goods and
services can’t be refused to a person because of
their gender identity. If your staff discriminate against
or harass a customer on the basis of gender identity you
could be vicariously liable as their employer (see above
for details).
Accommodation
You must treat everyone fairly irrespective of their
gender identity when offering or providing temporary
(including emergency) or permanent accommodation. You
cannot refuse someone accommodation because of their
gender identity except when accommodation is restricted
to a particular sex. Note, however, if a person seeks
accommodation targeted to a particular sex and they
identify as a member of that sex, you must not
discriminate against them on the basis of their gender
identity by not treating them as the sex they identify
as.
WHO IS PROTECTED AGAINST GENDER IDENTITY
DISCRIMINATION AND HARASSMENT?
As with any protected characteristic, the Equal
Opportunity Act only recognises gender identity if it is
bona fide. This means that a person is only protected if
their identification is genuine rather than fraudulent or
in bad faith.
If a person:
- wants to live as a member of their self-identified
gender (different from their gender as shown on any
inconsistent documentation);
- is in the process of transitioning into their
self-identified gender;
- has lived, or is currently living as a member of
their self-identified gender;
- is intersexual (born with anatomy or physiology
different to current ideas of what constitutes
“normal” male and female);
- adopts the characteristics of the relevant gender
in part of their life, for example, by
“cross-dressing”;
they will be protected against unlawful discrimination
and harassment based on their gender identity.
To be protected by the Equal Opportunity Act, a person
doesn’t have to have had or be planning surgery,
hormone therapy or other treatment. It doesn’t
matter why they affirm a particular gender identity or
what they call themself. It doesn’t matter what
their previous gender (as shown on their original
identifying documentation) was. What is important is the
person’s identification as a member of the relevant
gender.
EXCEPTIONS
There are a number of common sense exceptions in
the Equal Opportunity Act that are designed to allow
employers to meet their critical service delivery needs.
These include setting reasonable standards of dress and
appearance according to the nature and circumstances of
employment. Ask for our Dress and Appearance Standards
for more information. Specific exceptions to the
protection against unfair treatment and harassment based
on gender identity also apply to employment and sport.
They are described below.
Employment Generally, you cannot treat someone
unfairly or harass them because of their gender identity
when deciding who to hire, terms and conditions of
employment, promotion and transfer opportunities, leave
entitlements, who to make redundant or dismiss and when
making exiting arrangements, including the provision of
references. See the Frequently Asked Questions for
information about what you can tell a prospective
employer.
Adequate notice The law recognises that you may
need time to accommodate an employee’s transition
and ensure a discrimination and harassment free
workplace. You are entitled to “adequate
notice” to facilitate this. If you don’t
receive adequate notice of an employee’s intention
to transition, discrimination may be lawful in some
circumstances.
Adequate notice might include time for you to seek
expert advice, talk to your employee about their
requirements for transitioning in the workplace, develop
appropriate policies and procedures and arrange training
and other activities necessary to ensure their transition
occurs in a discrimination and harassment free
workplace.
Adequate notice is a question of fact that would be
considered by the Equal Opportunity Commission if a
complaint of gender identity discrimination or harassment
were made.
When notice of gender identity is relevant An
employee need only give you notice if they intend to
transition in the workplace. They don’t need to tell
you if they have already transitioned or their current
gender identity and the gender shown on any identifying
documentation are different.
Obligation to protect employees’ privacy
Breach of an employee’s privacy on the basis of
their gender identity may be discrimination. If you or
any other member of staff or management discovered an
employee’s previous gender and “outed”
them in the workplace, any unfair treatment or harassment
that resulted would be unlawful and they could lodge a
complaint of gender identity discrimination or harassment
against their employer and anyone else involved, with the
Equal Opportunity Commission.
“Outing” could also be a breach of their
contract of employment, in particular, their right to
quiet enjoyment of the workplace.
Accommodating your employee’s gender
identity If you can’t reasonably accommodate a
transitioning employee, it may be open to you to
discriminate against them even if they have given you
adequate notice of their gender identity.
What is reasonable is a question of fact; the Equal
Opportunity Commission will take into account:
- the cost of not discriminating;
- the feasibility of not discriminating;
- the financial impact of not discriminating;
- your financial circumstances;
- the impact of the proposed discrimination on the
employee;
- any other relevant factors.
Cost and financial impact Cost and financial
impact considerations would include the expense of
educating and training staff; developing and implementing
appropriate equal opportunity policies and seeking
professional advice. These activities would not
ordinarily create significant costs, particularly if your
workplace already has equal opportunity policies and
procedures.
Feasibility Feasibility may be relevant when
the employee’s post-transition gender prevents them
from performing the genuine occupational requirements of
their job and it is beyond your resources to accommodate
their post-transition gender, for example, by
restructuring the workplace or offering alternative
duties. This is most likely to impact on a small business
with a small workforce. For example, sex could be a
genuine requirement of employment in a shop that provides
brassiere fitting services to women.
Weighing up the factors Note that these factors
must be weighed against the effect of the proposed
discrimination on the employee.
PREVENTING DISCRIMINATION AND HARASSMENT
By following these steps and getting
professional advice you should be able to prevent
workplace discrimination and harassment based on gender
identity.
Step 1 If an employee approaches you regarding
their gender identity, we recommend you seek professional
advice about how best to accommodate them.
Step 2 Talk to the employee about their needs
and preferred arrangements for transitioning. Issues to
discuss include:
- who needs to be told and how their gender identity
will be communicated;
- when the change will commence in the
workplace;
- whether they will be taking leave (which may be
preferable to facilitate acceptance);
- whether they will be available to discuss their
gender identity with colleagues;
- how information about their gender identity will
be provided.
It’s important that you don’t try and
persuade them to change their mind. Deciding to
transition in the workplace will have been a difficult
step to take. Express your support and make it clear to
them that you will do everything reasonably possible to
ensure a safe and supportive work environment. Remember,
the law requires you to take reasonable precautions to
ensure that the workplace is discrimination and
harassment free.
Step 3 If you don’t already have them in
place, prepare appropriate policies and procedures and
incorporate these into your workplace equal opportunity
policy. You may find our EO Works guidelines for
employers useful. They include information about equal
opportunity law, action planning, best practice and
sample policies and procedures. Contact us for more
information. Your policies and procedures should at least
take into account the factors listed in step 2.
Step 4 As agreed in step 2, notify staff and
management of the employee’s intention to
transition. Express support for the employee and affirm
the need for all staff and management to treat them with
respect at all times. Let staff and management know where
to find the workplace equal opportunity policy and
caution everyone against discriminatory and harassing
behaviour.
You will also need to provide the following
information:
- the date the employee’s transition will take
effect in the workplace;
- how they are to be addressed – appropriate
use of pronouns (he and she) and change of name;
and
- that the employee will have access to appropriate
facilities (including toilets).
Facilitate acceptance of the employee’s gender
identity by providing appropriate education. This might
include information about the different processes for
transitioning and its significance (including the fact
that it is not sexually motivated), the need for time off
and the importance of avoiding assumptions. Nominate an
appropriate staff member as a contact person for
queries.
Step 5 Review the situation with the employee
after they have transitioned. Your Human Resources
Department should monitor workplace behaviour
periodically to ensure ongoing compliance with
policy.
FREQUENTLY ASKED QUESTIONS
Do I have to recognise an employee’s
post-transition gender?
Yes. Treat them fairly (i.e. not less favourably
because of gender identity). This means treating them as
the gender they regard themselves to be. You may find it
useful to get professional advice. Contact us for a
referral to an organisation that can assist.
Which toilet and other segregated facilities may
such an employee use?
Normally they may use the facilities appropriate to
their gender identification. If other staff have any
concerns they should have the opportunity to discuss
these with an appropriate member of staff or
management.
Do I have to change employment records to reflect
an employee’s self-identified gender?
Yes. If you refuse to change records it may be
discriminatory.
May I ask an employee for identification?
Only if you also ask other employees. It’s not
generally appropriate to ask about gender identity. You
should treat an employee appropriately according to the
gender in which they present, unless one of the Equal
Opportunity Act’s limited exceptions applies. If an
employee’s identification shows a gender different
from that in which they present, take care to act
sensitively and only ask any questions that are
necessary, for example, to confirm they are the same
person shown in the identification.
Can I tell a prospective employer about a former
employee’s gender identity?
No. References should only provide information about
work performance or confirm that a person was employed by
your organisation.
I run a lingerie store. It’s quite common for
men to try on women’s underwear for their sexual
gratification. Would this behaviour be protected by the
Equal Opportunity Act?
No. Simply masquerading as a woman is not the same as
identifying as a woman. Such behaviour does not fall
within the Equal Opportunity Act’s definition of
gender identity.
What if a pre-employment medical check-up indicates
that someone is transitioning or has already
transitioned?
Pre-employment medical checks should be
non-discriminatory. For more information, ask for our
Pre-Employment Medical Testing Guidelines. We have
produced separate guidelines for employers and doctors.
If gender is part of the genuine requirements of the job,
a transitioning employee will need to tell the doctor
about any relevant therapy and that they are
transitioning. They would not need to tell the doctor if
they have already transitioned. If the doctor or anyone
else uses the information provided in a discriminatory
way, the employee may be able to lodge a complaint under
the Equal Opportunity Act against the doctor and anyone
else involved.
What about other employment-related medical
testing?
Employee medical testing must be performed in a
non-discriminatory and confidential way. Medical testing
must only relate to the genuine requirements of the
job.
May I target a position on the basis of gender
identity?
You may seek an exemption under the Equal Opportunity
Act to target a position on the basis of gender identity.
You will need to demonstrate that doing so is consistent
with the beneficial principles of the Equal Opportunity
Act.
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.
What about superannuation and life insurance?
Specific exceptions apply to superannuation and life
insurance. Contact us for more information.
Do I have to give an employee time off work to
attend medical appointments related to their gender
identity?
You should provide time off to your employee in the
same way as for all other employees.
Do I have to put a patient in the hospital ward of
their self-identified gender?
Yes, where it is available. A hospital is a provider
of goods and services and is covered by the Equal
Opportunity Act.
However, there are some exceptions that may apply. The
answer may depend on your circumstances. Contact us for
advice.
NEED TO KNOW MORE?
The Equal Opportunity Commission monitors equal
opportunity and human rights issues and works to
eliminate unlawful discrimination and harassment in
Victoria. It does this by:
- providing free and confidential telephone advice
on equal opportunity rights and responsibilities;
- helping to resolve complaints made under the
Victorian Equal Opportunity Act;
- providing training and running public education
campaigns;
- producing a range of publications; and
- conducting research and providing legal and policy
advice.
Contact us
Equal Opportunity Commission
Level 3, 380 Lonsdale Street
MELBOURNE VIC 3000
Advice: (03) 9281 7100 or toll free 1800 134 142 (country
callers)
General enquiries: (03) 9281 7111
TTY: (03) 9281 7110
Training and information: (03) 9281 7142
Publications: (03) 9281 7151
Fax: (03) 9281 7171
Email: eoc@vicnet.net.au
Website: www.eoc.vic.gov.au
Other assistance
Ask us for a referral to other organisations that may be
able to assist you.
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