Information for employers: trans and gender diverse employees

A trans or gender diverse person may not feel comfortable talking about their gender expression, identity or biological sex with work colleagues or managers. It is usually not necessary to know personal information to support a trans or gender diverse person in the workplace.

Why is getting it right so important?

For many trans and gender diverse people, affirming their gender and presenting as themselves at work can be the final frontier.

In many cases the person transitioning will have presented as their gender in non-work situations, such as in their private lives with friends and family.

Work is a major part of a person’s life. It is not only about livelihood, but influences a person’s feeling of self-worth. After transitioning, the reality is that trans and gender diverse people often face prejudice when trying to get work, particularly at the interview stage. For this reason many trans and gender diverse people prefer to stay in their existing jobs; but even so, may still be fearful of losing that employment.

The employee may have real fears about the process ahead, and may look to you for support and guidance.

Recruitment issues

Visible inclusion policies

Trans and gender diverse employees may seek out employers who promote themselves as inclusive employers. Many company or organisation websites have inclusive hiring statements, but not all include statements about equal opportunity for people of diverse genders and gender identities. Consider adding a few words to your company’s equal opportunity hiring policy and non-discrimination policy.

Gender identity can be specifically included in anti-discrimination policies to make it clear to other employees what the expectations of them are. Gender identity is a protected attribute under Queensland Anti-Discrimination Act 1991 and also under the federal Sex Discrimination Act 1984. You may be able to simply add the words gender identity and gender expression to your existing list of protected attributes, if they are not already there.

Here are some suggestions for text that you could include in your policy:

[Organisation name] fosters diversity, inclusion and respect in the workplace.

We recognise, appreciate and utilise the unique insights, perspectives and backgrounds of each staff member, including gender diverse employees.

[Organisation name] promotes equal opportunity for all staff, including gender diverse employees.

We hire and promote staff based on their ability, and not because of a person’s attributes (such as age, race, sex, impairment, religion, sexuality, family responsibilities, gender identity, political beliefs etc.)

[Organisation name] cares about treating people with dignity and respect in ways that acknowledge and engage diverse backgrounds and ideas.

Our policies, practices and behaviours foster a safe and inclusive workplace, and promote equitable and collaborative relationships.

At [Organisation name] we hire diverse staff who will contribute to this mission, including people who identify as LGBTIQ+.

Inclusive forms

For cisgender people, filling in a form with only male or female tick box options is uncomplicated.

However, having only the male and female binary options is confronting and frustrating for gender diverse people. It also reflects badly on the organisation, and may create the impression that it is not an inclusive employer.

You may also question the reason for asking a person’s sex or gender, and whether the information is necessary. If it is being asked for a legitimate reason, such as to record demographic details of the staff to promote diversity and inclusion it is important to explain that is why the information is being sought. It could be an optional question, or you could have an open text box for individual responses, for example:

Male

Female

Non-binary

Different term _________ (please specify)

Job interviews

If you are unsure about how a person being interviewed would like to be addressed (that is, as he, she or they), it is okay to ask the person which they use. If the person corrects you, use the pronoun they have specified.

Questions about a person’s gender identity or expression during an interview are unwise if they don’t relate to the person’s ability to do the job. If a person has been asked about their gender identity during an interview and doesn’t get the job, they may feel that the reason behind the decision was their gender identity, rather than merit.

Managing a workplace transition or affirmation

If an employee advises you that they are undergoing a gender transition or affirmation, this section will provide you with advice and practical tools to ensure a successful transition at work.

Appointing a case manager

We recommend that you have a case manager in charge of managing a workplace transition or affirmation. This person will be the primary contact for the transitioning employee, and give colleagues someone to talk to on a confidential basis, if any issues arise.

The right person for the job is someone who is open, compassionate and sensitive. They should also be an effective communicator who is prepared to listen to all employee needs. The case manager should also be confident to deal with any conflict that may arise with colleagues about issues such as use of toilets and change rooms.

Support person or ally

Ask the transitioning employee if they would like someone to be a support person or ally during the process. This could be a colleague that they have a close relationship with, or an external person such as a partner, friend or family member. They could also be another trans or gender diverse person or someone from the LGBTIQ+ ally network, if you have one.

Questions to ask

Ask the trans or gender diverse person what their preferences and intentions are. The person may have firm views about their transition or affirmation, or they may be unsure what exactly they want to happen. Before coming to any conclusions about the best way forward, have open discussions about options and consider what will work best for everyone.

Does the person want to set a date from which they will start presenting as their gender, or would they prefer it to happen over time? Does the date give enough time for practical measures to be put in place?

Will the person have a new name and/or pronoun? What will these be, and when should managers and staff start using them?

Does the person want to announce their transition to colleagues themself? Would they like the news to be shared by email, or would they like a meeting to be held in their absence where the news is provided to staff?

Are there any resources about trans and gender diversity issues that could be made available to staff?

How should questions from staff be addressed? Should staff be directed to the trans or gender diverse person themself, to HR, or a case manager? (This might depend on what the issue is)

What are the specific “no go” topics that should be avoided? (See the Inappropriate questions section of the Information for colleagues section of this guide.)

Options to discuss

Here are some options to discuss with the transitioning employee. Consider the pros and cons of each option together:

the transitioning employee informs each staff member themself on a one-on-one basis (note: this may be more practical in a small workplace.)
the transitioning employee informs only some trusted staff individually
a staff meeting where the transitioning employee announces and discusses their transition with the group
a staff meeting (with or without the transitioning employee present) where a manager, HR person or other person of authority informs staff
an email notification to staff and relevant stakeholders to be sent by the employer or transitioning employee
a video presentation made by the transitioning employee introducing themself as their affirmed gender
a presentation from an external presenter (such as the Queensland Human Rights Commission) or a member of the trans or gender diverse community who has personal experience. For more information about training offered by the QHRC, email training@qhrc.qld.gov.au or call 1300 130 670.

Common issues

Toilets and change rooms

A trans employee should be allowed to use a toilet or change room that reflects and affirms their gender.

They may express a preference to use a unisex or accessible toilet, but should not be required to use one. Cisgender employees are not required to use a unisex toilet, so neither should a trans or gender diverse employee.

Also, do not direct a trans staff member to only use a toilet on another floor, or a toilet outside the office space. If the trans person is treated differently from others, there is a risk that this may be direct discrimination.

Ask the staff member at what point they would like to start using the toilet of their choice, or whether they would prefer to use a unisex toilet in the short or long term.

Uniform and dress standards

If the workplace has a uniform, a trans employee may need a new uniform. They should not be expected to continue dressing in a uniform that does not match their gender identity.

If you require a professional standard of dress in the workplace, it is reasonable to expect the transitioning employee to wear appropriate corporate clothing in line with what other people of their affirmed gender wear at work.

If you require protective clothing, shoes etc., the transitioning employee will also have to meet the expected standard for workplace health and safety in the way they dress. However, make sure that there are not different standards or expectations for a trans or gender diverse employee compared with the cisgender employees.

Transitioning is not like flicking a switch; it is a process that can take time.

The transitioning employee may experiment with levels of masculinity and femininity, and style of dress until they find what works best for them. This is not about the person seeking attention, but finding themself in their gender identity.

Records, logins and email address

A trans person will often change their name to reflect their gender.

Name change

People born or adopted in Queensland, who are over the age of 18, can apply to change their legal name through the Registry of Births, Deaths and Marriages. This service is also available to people born overseas who have lived in Queensland for the past 12 months; but people born in other Australian states have to apply to the state in which they were born.

Name changes can take time and might be onerous. Employees born overseas who have been in Australia for a short time will not be able to change their name without great difficulty. Employees under 18 years might also have significant challenges if they do not have the support of parents or carers.

For these reasons, the employer should make the process for employees to change their name on all documents aside from official records (such as superannuation and tax) as simple as possible, as soon as the person requests the change. The documents that can be more quickly changed include email addresses and signatures, name tags and ID cards. Formal documents such as tax or superannuation funds might require formal name changes – you might need to assist the employee with this process (explained further below).

Refusing to change records can cause distress to a trans or gender diverse employee and it also might amount to unlawful discrimination.

Birth certificate

A person who has had “sexual reassignment surgery” can apply to note the change of sex on their Queensland birth certificate. However, this service is not available to trans and gender diverse people who have not undergone sexual reassignment surgery. There is no provision for a person who wishes to be identified as other than male or female to note this on their birth certificate.

Driver licence and passport

Driver licences in Queensland no longer include gender markers. Once a person has changed their legal name, they can apply to change their personal details on a Queensland driver licence.

Australian citizens can change the name on their passport but only once their name has been changed with the Registry of Births, Deaths and Marriages. A trans or gender diverse person does not have to have undergone surgery to get a passport issued in their gender, but needs to provide either evidence from the Registry of Births, Deaths and Marriages, or a statement from a medical practitioner or psychologist confirming their gender. The options that a person may select are male, female or X.

Australian Tax Office and superannuation records

The Australian Tax Office (ATO) has procedures for updating details of name and gender on their records. A trans or gender diverse employee can change their name with ATO with a myGov account and with a birth certificate, marriage certificate or change of name certificate.

To change gender information with the ATO the trans or gender diverse employee should provide a statement from a medical practitioner, or a valid passport specifying the amended gender, or an amended birth certificate. The options are male, female or indeterminate.

Once the trans or gender diverse employee has changed their ATO records, they will be able to contact their superannuation fund to change the details on those records.

In-house details

The trans or gender diverse employee will need to change all their records to their new identity.

Changing records is a process that will involve the employer and employee working together. Avoid unreasonable delays as this may cause unnecessary distress for the transitioning employee. The in-house records that usually have to be changed or reissued are:

email account;
computer login;
ID card or badge;
personnel records; and
payroll.

It is not appropriate to insist that a trans or gender diverse employee registers a change of sex with the Registry of Births, Deaths and Marriages before you allow a change to their employment records.
A trans employee who has not had gender reassignment surgery cannot comply with this condition.
It is a common misconception that a person must formally change their sex with the Registry before expressing themselves as their affirmed gender.
Further it is unnecessary and may cause great offence to ask a trans or gender diverse employee to provide any kind of “medical” evidence.

Sick leave

As a manager, you do not need to know if a person is undergoing hormone treatment, surgery or counselling. Only discuss it if the employee raises the issue themself. Sex affirmation surgery is not chosen by all trans and gender diverse people. You would not ask a cisgender woman about a gynaecological procedure; it is simply information you do not require as their manager.

However, a transitioning employee may require some flexibility when it comes to taking time off for medical appointments and surgery.

Not all trans people have gender dysphoria but for those who have disclosed that they do, employers should be aware that it is a recognised condition, and as with other medical conditions, an employer needs to make reasonable adjustments to allow leave to occur.

When a person starts hormone treatment, they go through an experience similar to puberty. This may affect mood in some people, but the effects will decrease over time. Be patient as the person adjusts to the hormones, and be mindful that behavioural changes will settle down in time.

Co-worker reactions

Be prepared to manage co-workers’ reactions to the transition process. Most people are not well educated about trans and gender diversity issues, and you should be prepared to educate your staff. You can use the Information for colleagues section in this resource as a handout, or as the basis for a discussion with the trans employee’s colleagues.

Try to provide this information prior to the start of the transition process so that employees are clear about what the expectations of them are. If there are negative reactions by co-workers, the organisation risks being vicariously liable (under the Anti-Discrimination Act) for the actions of employees.

Here are some tips:

Develop standard responses to employees who raise issues about toilet use and physical appearance.
Encourage staff to raise concerns privately with the case manager, so that the transitioning staff member is not placed in an uncomfortable or harmful position.
Anticipate that misgendering (calling the person by the wrong name or pronoun) or deadnaming (calling the person by their former name) is likely to occur by accident to begin with; but be aware that these mistakes can be hurtful to a trans or gender diverse person. Any consistent and intentional misgendering or deadnaming could be unlawful discrimination.
Consider and plan for what consequences there may be for a co-worker who treats the transitioning employee unfavourably.

External relationships

Provide basic information to people who interact with your employees and need to know about the transition, such as security staff. The trans or gender diverse employee may have an external client or customer group that they regularly deal with.

Have a standard response ready in case a client or customer asks for the person by their former name. If there are ongoing relationships, one option is to send an email to key stakeholders about the transition. Alternatively, the transitioning employee may wish to handle these interactions themself.

This is something to discuss with the transitioning employee to determine their preference.

Confidentiality

Talk with the transitioning employee about whether they are comfortable with disclosing their gender identity. For practical reasons, colleagues present around the time of the transition will become aware of the transition. However, after the transition there is no good reason for a new employee who knows the person as their gender now to be told about the employee’s gender identity.

Possible discrimination risks for an employer

Possible discrimination risks for an employer:
Moving an employee to a different position in the organisation (when not requested) may be seen as unfavourable treatment.
Requiring a staff member to use a toilet or change room that does not match their gender is gender identity discrimination.
Refusing time off for medical appointments could be impairment or gender identity discrimination.
Refusing to organise a name change at the employee’s request on personnel files, emails, ID cards and other documents could be indirect discrimination.

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