Trans and Non-binary Inclusive Workplaces: A Guide for Employers and Employees

Employment can be a significant source of stress for trans and nonbinary people. Hiring discrimination, workplace bullying, access to bathrooms, privacy violations, appearance requirements, and other people’s incorrect assumptions are all things that a trans or nonbinary person may face in the workforce.

These barriers lead to higher unemployment rates compared to the general population and can also encourage people to delay transition or stay in jobs they would prefer to leave. This then has flow on effects for people’s mental and emotional wellbeing and financial stability.

Fortunately, treating trans and nonbinary employees fairly and supporting their transition or gender presentation has hugely positive impacts in all these areas. Making your workplace trans inclusive is an important way to show your support for the dignity and human rights of all people.

This guide aims to help employers support trans and nonbinary employees by bringing you up to speed on your responsibilities and other ways you can help. The second part also explains your rights as a trans or nonbinary employee.

Some Background

Trans or gender diverse people are people whose experience of themselves doesn’t match with societal expectations based on the sex they were assigned at birth.

This includes both people who identify with a binary gender (man or woman) and nonbinary people, a grouping which includes a range of different experiences and identities that fall outside or do not strictly align with either end of a man/woman binary. For more information about this, see some of the resources listed at the end.

Some trans or non-binary people might choose to medically transition (making changes to their bodies) or to socially transition (e.g. make changes in how they present, changing name, using different pronouns).

Every trans and non-binary person has their own experience. Some people may need support in the workplace; for others being trans may never come up.

Deciding whether to disclose being trans is a personal choice, and there are many reasons why someone may not do so. Someone may be worried about potential discrimination or simply not see it as relevant.

Even if you think you do not have any trans employees, actively creating an inclusive workplace makes for a better environment for all current and future employees by minimising the assumptions we make about people and their gender.

Legally, discrimination is prohibited on the grounds of sex under the Human Rights Act 1993, and this includes trans people. The Human Rights Act applies to almost all aspects of employment including job advertisements, application forms, interviews and job offers. It also applies to unpaid workers and independent contractors.  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.

Advice for employers

Hiring

You should not ask a potential employee if they are trans, unless it is a job that specifically requires a trans or gender diverse person, e.g. casting for a role. If you do have a men-only or women-only position, you should treat trans women the same as other women and trans men the same as other men. You should also consider whether it is truly necessary to limit a job to one gender, to avoid missing out on excellent candidates.

An employer also cannot refuse to hire a trans person because they are trans or because “they won’t fit in”.

You should only ask trans or nonbinary people for previous name details if these are required from all applicants for a specific purpose. If this is the case, you should reassure applicants that this information will only be used to verify identity and not for any other purpose.

 Tips:
Minimise your requirements for ID in early stages of interviewing

Changing ID can be a lengthy and expensive process. Having to show employers something with an old name or assigned gender at birth can mean that trans people are “outed” before they have the chance to interview and assess how safe or important it is to share that information. Consider only requesting this at later stages when you need it.

Don’t judge people on their gender expression or appearance

Sometimes people might present in ways that differ from what you expect, but in most roles, this will not impact someone’s ability to do a job well. It’s okay to acknowledge that you have this reaction, but you then want to challenge these initial biases. Don’t let let this impact your decision or how you treat a candidate.

Publish information about how you support trans employees  

One of the stressful things for trans people applying to jobs is not being able to know whether they will be treated fairly. The best way to encourage trans people to apply for your workplace is to make your support explicit. Include clear non-discrimination statements in your job descriptions, create policies about how you will support trans and nonbinary employees, and make these available in places like your website where potential employees can read them.

Looking after trans employees

Just like you should not discriminate during hiring, it’s also important that you treat trans employees fairly while they work for you. Assign job duties, pay, and promote trans people just as you would any other employee.

Support trans and non-binary employees who want to remain in frontline work: it’s important to protect your employees against harassment from other staff or from customers or clients. Make it clear that you will have your employees’ backs in these situations, so that they feel comfortable flagging anything that does arise. This will help your trans employees do their jobs to their full potential.

If a trans or nonbinary employee does experience discrimination from clients or customers in a frontline role, and they want to move away from this as a result, try to offer opportunities for further training or figure out if there are ways to shift their role.

Dress codes

If you have a dress code or uniform, you should make sure that people can wear the style or items that feel right for them. You should avoid having a dress code or uniform based on gender stereotypes and enforce any rules consistently. Consider making any dress code gender neutral, with any rules about clothing types, hair, make up, or jewellery being applied equally to all employees.

 Bathrooms and changing facilities

Making sure that people have access to bathrooms that they feel comfortable using is hugely important for both the emotional and physical health of your employees.

Making sure you have accessible unisex toilets will help nonbinary employees who feel uncomfortable using either men’s or women’s bathrooms and may also be more comfortable for a trans person early in their transition. That said, trans employees should be able to use facilities that match their gender identity, trans women should be able to use a women’s toilet, and trans men should be able to use a men’s toilet.

If a transitioning employee prefers to use a single sex toilet, you may wish to include this in the agreed action plan. You should stress that all staff, including trans employees, have the right to expect privacy and safety when using these facilities.

Normalise using pronouns in the workplace

Pronouns are a way we can refer to people without always using their names. The most common ones for people in English are he/him, she/her and they/them, but there are also others. There is no direct relationship between a appearance or identity and the pronouns that a person uses, so the only way to know for sure which pronouns someone would like you to use is to ask. Including pronouns in email signatures is one great way to normalise talking about pronouns instead of assuming and possibly misgendering people.

Supporting transitioning employees

If an employee indicates to you that they are going to transition, you should discuss with them whether or how to inform other employees. Take your employee’s lead on how much and what other information they want shared, and do not share any personal information without their consent. Ask what name and pronoun they want to use, and if they want to formally change these, you should arrange to change these on all workplace records (e.g. ID cards, email, phone lists, payroll) including past ones.

Without disclosing private personal information, let other employees know your expectations of respectful behaviour towards all staff. You should emphasise that any policies relating to trans employees are not special rights or privileges but simply ensure that all employees are treated with respect, and are not subject to harassment or discrimination, regardless of sex, age, ethnicity or gender identity or sexual orientation.

By setting a good example and being supportive and reassuring during an employee’s transition, you will help the employee to carry on with their job as usual.

An employee who is transitioning may need to attend appointments as part of this process. Treat these the same as any other necessary appointments, and if feasible, consider allowing employees to work flexibly to avoid using up sick leave. Provide access to an Employment Assistance Programme or counselling support if relevant and desired.

For trans and nonbinary employees

If you are trans or non-binary, or starting to think that you might be, it is 100% okay to take things at your own place, and only disclose what you are comfortable with and when you are ready.

It is reasonable to be worried about potential discrimination in hiring or the workplace, but it’s also important to remember that lots of workplaces are supportive too.  This part of the guide is about knowing your rights as a trans or nonbinary employee and some tips for finding the right work environment for you.

Your rights

If you have been unlawfully discriminated against before starting employment, you can make a complaint under the Human Rights Act to the Human Rights Commission, and if you experience unlawful discrimination after starting a job you can either raise a personal grievance under the Employment Relations Act or make a complain under the Human Rights Act.

The Department of Labour Contact Centre (0800 20 90 20) can also provide information on employment issues.

Job hunting

Job hunting is stressful for everyone, and microaggressions and discrimination just add another layer of stress. Look after yourself and lean on your support network as much as possible. If you don’t already have good supports to lean on, you can reach out to trans support groups or organisations like OUTLine.

Ahead of time, you can research potential employers to see whether they provide information about their policies and practices.

If you want to gauge how trans-friendly a workplace is while interviewing, you could consider asking generally about non-discrimination policies, raise it as a specific question while interviewing, or wait until receiving an offer before asking, depending on your personal comfort levels.

Transitioning at work

If you decide to transition – socially, medically, or both – most employers will expect you to let them know what steps (if any) they should take, what steps you are intending to take within the workplace and what this means for other staff. If this sounds scary, you could bring a support person along with you, like a friend, family member, or union delegate.

You may find it useful to have a written action plan, but it’s also okay to not know everything yet and to let your employer know that this is just an indication which may change as your transition progresses. A plan might include identifying what information is relevant (and that this doesn’t include personal medical details), who needs to be told what, and how and when they will be informed. It also might include things like a timeline for being known by a new name, using new pronouns, adopting a different dress code, using bathrooms, and whether you will need time off for transition related appointments.

Resources

Support and resources

Transgender Peer Support Service – This service supports people to explore gender identity through accessing gender-affirming healthcare, providing information and resources, and creating connection and community with other gender-diverse people. If you are 28 or older in Auckland, access this through OUTLine, for people 27 and under in Auckland or all ages in Northland, via RainbowYOUTH

OUTLine – A free service for LGBTIQ+ people and their supporters. Call 0800 OUTLINE (688 5463) from 6-9pm every day to talk to a member of the LGBTIQ+ community trained to listen and answer your questions.

Gender Minorities Aotearoa – GMA is a nationwide transgender organisation which offers information, advocacy, and wrap around support for transgender people of all ages, ethnicities, and backgrounds.

Naming New Zealand – an organisation to help transgender, gender diverse and intersex youth with updating their identity documents to correctly reflect their sex and gender.

Human Rights Commission – The HRC works under the Human Rights Act 1993 to promote and protect the human rights of all people in Aotearoa New Zealand. If you have experienced unlawful discrimination, you can make a complaint to the Human Rights Commission. They can help with advice and information and, if necessary, mediating your complaint.

Further information

Counting Ourselves – This 2019 report gives the results of the first comprehensive national survey of the health and wellbeing of trans and non-binary people living in Aotearoa New Zealand, It includes information about trans and non-binary people’s experience with employment.

To Be Who I Am – This 2008 report gives the results of the Human Rights Commission Transgender Inquiry, about trans people’s experience with health care access, everyday interactions and community participation.

Employment New Zealand – Offers information for employers on how to support trans employees and the relevant legal protections

Transgender People at Work – A Department of Labour resource providing information about legal and employment rights, workplace issues that trans people may encounter in their working lives, and advice for employers of trans employees who are transitioning or intending to transition.

WeCount Survey – Information about Rainbow people in the New Zealand public service.

Benefits of Workplace Diversity – A US-based page from the company PeopleScout about the importance of workplace diversity and how to recruit LGBTQ employees.

General employment resources

Employment New Zealand – Information about employment and employment law in New Zealand.

Ask a Manager – A US-based blog that aims to provide readers with insight into how managers and interviewers think, and how to use that information to navigate work-related issues.