Employment protections for transgender people

Prohibition of discrimination on the grounds of sex under the Human Rights Act 1993 is considered to include the grounds of gender identity. Transgender people may be protected under the Human Rights Act 1993 from unlawful discrimination on the grounds of gender identity in the workplace but this has not been tested in New Zealand courts.

The Employment Relations Act 2000 gives employees and employers a duty to treat each other in good faith, which includes an obligation to communicate openly and try to deal with any issues that affect their employment relationship.

Dismissal or refusal to hire

A person’s gender identity and expression is a part of who they are, not a lifestyle choice. A transgender person is not being deceptive or dishonest if they don’t disclose their gender identity. They don’t have to, and they may not be sharing personal information, because of fear that they will be discriminated against.

An employer can’t, just because a person is transgender:

  • refuse to hire them because “they won’t fit in”
  • move them away from frontline work (unless they ask or agree)
  • dismiss them
  • pressure them to resign by changing their working conditions.

Any of the situations above may provide grounds for a complaint of discrimination on the basis of sex under the Human Rights Act 2003 or, in the case of an employee, a personal grievance under the Employment Relations Act 2000 (including for a new employee on a trial period of up to 90-days).

In some specific employment situations, an employer can lawfully treat job applicants or employees differently on the basis of sex (eg by having men-only and women-only positions). Where treating people differently on the basis of sex is lawful, (ie lawful discrimination) the employer should treat a trans woman (male to female) the same as other women, and a trans man (female to male) the same as other men.

More information

Agender New Zealand

Human Rights Commission

Cases of interest

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