Gender Identity

Overview

The Department is committed to ensuring that its workplaces are safe and respectful for all employees and that everybody can work without fear of discrimination or harassment.

Discrimination and harassment against a person because of their gender identity is prohibited in Victoria under the Equal Opportunity Act 2010. 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.  An individual may identify as a person of a particular gender by the way they dress, by changing their name or by medical intervention such as hormone therapy, counselling or sex reassignment surgery. 

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.

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.”

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