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Is Transgender Discrimination or Transgender Harassment against the law?

Yes. Since 1 October 1996, it has generally been against the anti-discrimination law for someone to treat you unfairly, or harass you, in New South Wales because:

  • You are transgender
  • Someone thinks you are transgender, or
  • You have a relative, friend or work colleague who is transgender, or who someone thinks is transgender.

It is against the law to do this in many areas of New South Wales public life, described in When must people be treated fairly in NSW (see "When must people treat me fairly in New South Wales" below). But, please note that you can only use this law to deal with unfair treatment that happens in New South Wales. If the problem happened outside New South Wales, the New South Wales anti-discrimination law can't help you.

Who is counted as Transgender under Anti-Discrimination Law?

If you live, have lived, or want to live as a member of the opposite gender (sex) to your birth gender, the New South Wales anti-discrimination law counts you as transgender.

This means, you are legally counted as transgender, if:

  • You want to live as a member of your preferred gender (the opposite gender to your birth gender), or
  • You are in the process of "changing over" into your preferred gender, or
  • You live as a member of your preferred gender, or
  • You have lived as a member of your preferred gender in the past, or
  • You are intersexual (born with indeterminate sex, for example, with sexual parts of both sexes) and you live as a member of your preferred gender.

You do not have to have had any "sex change" or other surgery. You do not have to have taken any hormones in the past, or to be taking them now. It does not matter what your gender was at birth. It does not matter which gender is your preferred gender. It does not matter why you are transgender. It does not matter how you describe or "label" yourself (for example, as transgender, trany, transsexual, or something else). What matters is how you live and behave, or how you want to live and behave. If you fit any one of the "rules" listed above, then the anti-discrimination law counts you as transgender. In addition, if someone treats you unfairly just because they think you're transgender and/or they think you're homosexual/lesbian then the anti-discrimination law covers you. It does not matter whether you are transgender, or whether you are homosexual/lesbian. What matters is what other people think you are.

When must people treat me fairly in New South Wales?

In general, people must treat you fairly in the following places or circumstances:

  • In most types of employment - when you apply for a job, at work, or when you leave a job
  • When you get, or try to get, most types of goods or services - for example, from shops, hotels and other entertainment places, banks, lawyers, government departments, local councils, public transport, doctors, hospitals and other medical services, the police
  • When you apply to get into, or study in, any State educational institution, that is, any government school, college, TAFE or university
  • When you rent or try to rent accommodation - for example, a unit, house, commercial premises, mobile home, hotel or motel room
  • When you try to enter or join a registered club, or when you get services from one - a registered club is a club that sells alcohol or has gambling machines.

It can also be against the law if employers, State educational institutions, providers of goods and services, accommodation providers or registered clubs have rules or policies that:

  • Disadvantage many more people who are transgender than people who are not transgender, and
  • The rules or policies are not reasonable in all the circumstances.

Public vilification of transgender people is also against the law.

It is also against the anti-discrimination law for anyone to do anything publicly that could encourage other people to hate, be seriously contemptuous of, or severely ridicule people who are transgender, or people who are thought to be transgender. The law calls this type of behaviour "transgender vilification".

The following types of behaviour could be transgender vilification and against the law:

  • Graffiti that vilifies people who are transgender
  • Speeches or statements made in public that vilify people who are transgender
  • Abuse that happens in public that vilifies people who are transgender
  • Statements or remarks in a newspaper or journal, in other publications, or on the radio or television that vilify people who are transgender
  • People wearing symbols (such as badges) or clothing with slogans, in public, that vilify people who are transgender
  • Gestures made in public that vilify people who are transgender
  • Posters in a public place that vilify people who are transgender.

Who is counted as a "recognised transgender" person?

"Recognised transgender" people are legally counted as their preferred gender (sex), other people who are transgender are not.

All people who are transgender must be treated fairly - in employment, when getting goods or services, and so on. However, under NSW law, only some people who are transgender are legally counted as being the opposite gender (sex) to their birth gender (that is, as their preferred gender). You are legally your preferred gender if you are what the law calls a "recognised transgender" person.

Under the anti-discrimination law you can only be a "recognised transgender" person if:

  • You have a new birth certificate issued by the New South Wales Births, Deaths and Marriages Registry that states the sex you identify with, or
  • You have an equivalent document known as an "interstate recognition certificate" issued under South Australian, Northern Territory, ACT or Western Australian laws.

The Births, Deaths and Marriages Registration Regulations 2001 (NSW) have been amended to include the Western Australian Gender Reassignment Act 2000 so that interstate recognition certificates obtained under that Act will be recognised in New South Wales. However, at the time of writing, the WA Parliament has passed the Gender Reassignment Act 2000, but it has not yet been proclaimed and therefore is not yet in operation.

You can only get a new New South Wales birth certificate issued, if:

  • Your birth was originally registered in New South Wales, and
  • You are over 18 (or, if you are under 18 your parent or guardian agrees to you doing this), and
  • You have had sex reassignment surgery (sex reassignment surgery includes any surgical alteration to your reproductive organs, for example, to your womb or genital area), and
  • You are not currently married.

For further information about how to get your NSW birth certificate changed, contact the New South Wales Registry of Births, Deaths and Marriages.

For further information about how to get a South Australian recognition certificate, contact the South Australia Registry of Births, Deaths and Marriages.

For further information about how to get your ACT birth certificate changed, contact the ACT Registry of Births, Deaths and Marriages.

For further information about how to get your NT birth certificate changed, contact the Northern Territory Registry of Births, Deaths and Marriages.

For further information about whether the Western Australian laws are in operation, contact the WA Registry of Births, Deaths and Marriages.

If you are a "recognised transgender" person, the New South Wales law counts you as being legally your preferred gender (sex).

If you have altered the record of your sex on your NSW birth certificate or you have an interstate recognition certificate under South Australian, ACT or Northern Territory laws, you are legally recognised as your reassigned sex under NSW laws. If you are a female to male transgender person, people must treat you as a man. If you are a male to female transgender person, people must treat you as a woman.

For example, in general, if you are a male to female "recognised transgender" person you have the legal right to be considered for a job that is legally allowed to be for women only. Similarly, in general, you have the legal right to receive a service targeted at women only (for example to attend a women-only gym or to be charged the female rate for insurance).

You also have the legal right to be treated fairly - that is, in the same way that all other women are treated. You must not be treated differently or unfairly just because you are transgender.

If you are not counted as a "recognised transgender" person, you can't legally force people to treat you as your preferred gender (sex). But they must still treat you fairly.

For example, if you were born male but your preferred gender is female, in general, you can't legally force an employer to give you a job that is legally allowed to be for women only, as you aren't legally considered to be female. And you may not be able to legally insist on receiving a service aimed at women only (for example, attending a women's refuge or a women-only gym), if they don't want to give it to you.

However, in general, where services and jobs are provided to both genders (sexes), you must not be treated differently or unfairly just because you're transgender.

It can also be against the law if employers, State educational institutions, providers of goods and services, accommodation providers or registered clubs have rules or policies that:

  • Disadvantage many more people who are transgender than people who are not transgender, and
  • The rules or policies are not reasonable in all the circumstances.

What are my work rights as a transgender person?

In general, you have the right to apply for and be considered fairly for most jobs, apprenticeships or traineeships. In general, all job advertisements, jobs, apprenticeships and traineeships must be open to you. The fact that you're transgender, or someone thinks you are, must not be used as a reason to prevent you from either applying for, or getting a job, apprenticeship or traineeship. You must be assessed on your merit against the criteria for the job in the same way as all other non-transgender applicants.

In general, you also have the legal right to be trained, promoted, and get the same work benefits as everyone else. For example:

  • A manager must not refuse to promote you because he or she is worried that the people you would supervise won't respect a person who is transgender
  • If you are a recognised transgender person, in general, you must be treated as your preferred gender
  • If you are not a "recognised transgender" person, the law is not quite so clear. You can insist that you use the toilets and change rooms of your preferred gender, and that you wear the dress or uniform of your preferred gender, whenever you can show that it is "reasonable in all the circumstances" to insist on this. At the Anti-Discrimination Board, we advise employers that, in most cases, it will make practical sense, (and is probably safest legally), to allow you to use the toilets and change rooms and to wear the dress or uniform of your preferred gender, if this is what you want to do.

However, there is an exception for superannuation schemes. The law says that superannuation schemes are allowed to treat you as a member of your birth gender (sex), even if you are a "recognised transgender person".

In general, you also have the legal right not to be harassed at work because you are transgender. Employers must do their best to make sure you're not harassed. This includes making sure you're not harassed by other employees while you're in the process of changing over into your preferred gender (transitioning). It also includes making sure you're not harassed for using the toilets or change rooms of your preferred gender.

Finally, in general, you must not be dismissed for being transgender. An employer can only dismiss you for fair reasons - in the same way as anyone else. For example, an employer may be able to dismiss you for ongoing poor work performance, serious misconduct, medical reasons that mean you're no longer fit enough to do the job, or redundancy. In general, they must not use the fact that you're transgender, or are in the process of "changing over" into your preferred gender as a reason to dismiss you.

What are my rights to goods and services as a transgender person?

"Goods and services" include goods or services that you get from shops, banks, lawyers, government departments, public transport, local councils, doctors, hospitals, hotels and entertainment places, the police, and so on.

In general, you have the right to apply for and get goods or services in the same way as people who are not transgender. People must not harass you for being transgender when you are getting or trying to get most goods or services.

In the same way as at work, if you are a "recognised transgender" person you must generally be treated as your preferred gender. For example, you must be allowed to use the toilets or change rooms provided for public use (for example, those in parks, shops or restaurants) of your preferred gender.

If you are not a "recognised transgender" person the legal situation is not quite so clear, but in general, in most cases, you should be able to insist that you can use the toilets of your preferred gender - see "What are my work rights as a transgender person"?

There is an exception for playing sport. This means that you do not have the legal right to play single sex sporting activities as your preferred gender (sex). You only have the legal right to play single sex sport with people of your birth gender. For example, a female to male transgender person can still participate in "all female" sports.

Of course, it may be that people won't mind you playing single sex sport as your preferred gender. Or it may be that they won't know that you're transgender. However, once they do know, or they decide that they don't want to play with a person who is transgender, they can legally stop you playing single sex sport as a member of your preferred gender. But note that they can't make you take biological or chromosomal tests unless they are doing the same for everyone. In other words, the tests must be truly random, or everyone must be tested, or all the (medal) winners/place getters must be tested. They can't just test you because they suspect you're transgender.

Note that you cannot be excluded from coaching sport and administration of sport because you are a transgender person.

There is also an exception for superannuation schemes - see "What are my work rights as a transgender person"?

What are my rental accommodation rights as a transgender person?

Rental accommodation includes houses, units or flats, hotel or motel rooms, mobile homes and commercial premises.

In general, you have the right to rent accommodation in the same way as anyone else. For example, a real estate agent or property owner can't:

  • Refuse you self-contained accommodation
  • Charge you a higher bond or rent
  • Refuse or delay repairs or maintenance work because you are (or one of you is) transgender.

However, if the accommodation is "share accommodation" for less than six people, where you are living in the same premises as the main owner or tenant, or their near relative, they can choose who they want to live with them. It won't be against the anti-discrimination law if they decide they don't want to live with a person who is transgender. Just as it will not be against the anti-discrimination law if they decide they don't want to live with a gay man or a lesbian, or that they don't want to live with someone of a different (or the same) sex or ethnic background.

What are my State education rights as a transgender person?

State education includes education at any State university, State college, TAFE or State school. It does not include education at private schools, colleges or universities. The law says that private and/or religious-based education institutions are allowed to discriminate against people who are transgender, in the same way as the law says that they are allowed to discriminate against homosexuals.

In general, you have the right to apply for and get education, and/or any educational benefits, at any State co-educational institution (that is one for both sexes) in the same way as anyone else. For example:

  • They can't refuse you admission, or give you worse marks, or expel you just because you're transgender or in the process of changing over to your preferred gender
  • They must do their best to make sure that you're not harassed by teachers or students for being transgender
  • If you are a "recognised transgender" person, you must be treated at all times as a member of your preferred gender
  • If you are not a "recognised transgender" person, the law is not quite so clear. You can insist that you use the toilets and change rooms of your preferred gender, that you wear the dress or uniform of your preferred gender, and that you attend any single sex activities according to your preferred gender, whenever you can show that it is "reasonable in all the circumstances" to insist on this. At the Anti-Discrimination Board, we advise educational institutions that, in most cases, it will make practical sense (and is probably safest legally) to treat you as a member of your preferred gender if this is how you want to be treated.

However, the situation is more complicated for government single sex schools:

If you are a "recognised transgender" person you have the legal right to attend a single sex school for people of your preferred gender (sex), in the same way as any other person born to that gender. It would be transgender discrimination to refuse to consider you just because you are transgender.

If you are not a "recognised transgender" person the law is not quite so clear. Generally, it is against the law for any school to treat you unfairly for being transgender. However, whether you are able to insist on attending the single sex school of either the gender of your birth or your preferred gender is unclear. There have been no court interpretations of this part of the law yet. So, if you are having trouble staying on at or changing to a single sex school, please contact us.

What are my registered club rights as a transgender person?

Registered clubs include any clubs that sell alcohol or have gambling machines, for example, RSL clubs, workers clubs, some ethnic clubs and sporting clubs. Voluntary clubs such as Rotary and Lions are not registered clubs. This means that you can't use the law to stop them discriminating against you.

In general, you have the right to become a member of a registered club, and keep your membership in the same way as anyone else. The fact that you are transgender must not be used as a reason to refuse you membership or to take away your membership.

In general, you have a right to get registered club benefits on the same basis as all other members. You should not be treated differently because you are transgender. For example, you must not be harassed by other members, guests or club employees just because you are transgender.

In addition:

  • If you are a "recognised transgender" person, in general, you must be treated as your preferred gender
  • If you are not a "recognised transgender" person, the law is not quite so clear. You should be able to insist that you use the toilets and change rooms of your preferred gender, that you follow the dress rules of your preferred gender, and that you attend any single sex functions according to your preferred gender - whenever you can show that it is "reasonable in all the circumstances" to insist on this. At the Anti-Discrimination Board, we advise clubs that in most cases it will make practical sense (and is probably safest legally) to treat you as a member of your preferred gender if this is how you want to be treated.

Note that there is an exception for single sex sport. See: What are my rights to goods and services as a transgender person?

However, if the club is legally a single sex club the law is more complicated:

  • If you are a "recognised transgender" person you have the legal right to be a member of a single sex club for people of your preferred gender (sex), in the same way as any other person born to that gender. It would be transgender discrimination to refuse you membership because you are transgender.
  • If you are not a "recognised transgender" person the law is not quite so clear. Generally, it is against the law for any club to treat you unfairly for being transgender. The law says that a single sex club can still keep its status as a single sex club if it admits a person who is transgender who identifies with the sex of that club. However, whether you are able to insist on attending the single sex club of either the gender of your birth or your preferred gender is unclear. There have been no court interpretations of this part of the law yet. So, if you are having trouble getting or keeping your membership of a single sex club, please contact us for advice.

What can I do if I'm treated unfairly or harassed because I'm a transgender person?

If you can, talk with the person or organisation causing the problem. Tell them that you think that what has happened is against the law. Use whatever help you can. There are a range of community organisations that can help you. If you or they can't sort out the problem, you can complain to us at the Anti-Discrimination Board. We are a NSW government body that deals with discrimination problems.

If you aren't sure if what's happened is against the law, or you just want more information, please phone or visit us. If you decide you want us to help, you can contact us by phone, or you can write to us. If you don't want to complain to us yourself, you can ask your union, a lawyer, or any transgender organisation to assist you. It won't cost you any money for us to help you. Also, it is against the law for anyone to hassle or 'victimise' you because you've complained to us. We treat all discrimination problems confidentially. We will need to inform the organisation or person you are complaining about of the complaint. We will not release information about your complaint to anyone else except with your permission or if we are required to by law.

For us to be able to help, you must have been treated unfairly in the last six months. If you were treated unfairly, either send us a completed discrimination complaints form or write a letter to the President of the Anti-Discrimination Board explaining why you think you have been discriminated against. You can write to us in any language, or in braille.

What will the Anti-Discrimination Board do?

If what happened to you appears to be against the law, we will try to help you and the person or organisation you complained about find a private settlement that you both agree on. The settlement will depend on the circumstances of your case. It could be an apology, financial compensation, your job back, and so on.

Most complaints are settled in this way. If yours isn't, you may go to the Equal Opportunity Division of the Administrative Decisions Tribunal. This Tribunal is a court that hears discrimination matters and makes legal decisions that must be followed. However, very few cases need to go to court and, even then, it's possible to ask the court to keep your name and address confidential.

Can I have my name and gender reflected on records (e.g. employment, medical etc.)?

There are a wide variety of records and/or documents of identity which you may want to reflect your chosen name and the gender with which you identify or your reassigned gender, including employment, medical, educational institutions and bank accounts. These types of records may relate to the areas of public life covered by the Act, such as employment, education, and goods and services.

Rights of recognised transgender persons

If you are a "recognised transgender" person and the records relate to the areas of public life covered by the Act, you are legally entitled to have your records reflect both your chosen name and reassigned gender. Generally, a refusal to do so would amount to unlawful discrimination by treating you as a member of your former sex.

Rights of non-recognised transgender persons

If you are not a recognised transgender person, although you are not legally recognised as the gender with which you identify, it may be unlawful discrimination to refuse to reflect your chosen name and the gender with which you identify in your records. This may be the case where an employer, State educational institution, provider of goods and services, accommodation provider or registered club has a rule or policy that records or documents must be in your birth gender, and this rule or policy disadvantages many more people who are transgender than others; and the rule or policy is not reasonable in all the circumstances.

What are my rights under other laws?

"Recognised transgender" persons and other transgender persons have different rights, as explained below.

Rights of "recognised transgender" persons

If you are a "recognised transgender" person, you are counted legally as your preferred gender (sex) under all NSW laws - including, of course, the NSW anti-discrimination law. For example, you are counted legally as your preferred gender under NSW industrial relations law, under the NSW Crimes Act, when you make a statutory declaration, and so on.

But, you won't always be counted legally as a member of your preferred gender under federal laws. However, social security will count you as a member of your preferred gender. You can also get a new passport stating your preferred gender. By showing your new birth certificate and/or your new passport you will be able legally to do such things as open a bank account, take out a loan, get a new Medicare card, and get a new driver's license, all in your preferred gender.

Rights of all other people who are transgender

If you are not a "recognised transgender" person, you are not counted legally as a member of your preferred gender (sex), anywhere in Australia. However, as outlined in "Can I have my name and gender reflected on records", it may be possible to have certain records reflect your chosen name and the gender with which you identify.

The law allows you to change your name by deed poll or statutory declaration in all Australian States. In NSW, any adult who ordinarily resides in NSW or whose birth is registered in NSW can apply to the Registrar for registration of a change of name.

If you are unsure what your legal situation is in any particular area please get legal advice from the Legal Aid Commission, a community legal centre or a private lawyer.

The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of New South Wales, Australia only. This information was reprinted from the Lawlink website

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