Transgender Awareness Week is held in the second week of November every year.  The week focuses on educating the public about who transgender people are, sharing stories and experiences, and advancing advocacy around the issues of prejudice, discrimination and violence that affect that transgender community. 

Just last week, Kristine Ablinger reported that she was given 3 hours’ notice to get out of her flat because she was transgender. Kristine’s landlord allegedly emailed her expressing disapproval that Kristine was transitioning, and ordered her to be out of the house before the end of the day.  Kristine did not have a tenancy agreement with the landlord who not only owned the home, but also lived in the house with her.  

The Human Rights Act sets out the grounds upon which it is unlawful to discriminate against others, including in relation to employment and housing.  In particular, the Act prohibits landlords from refusing to rent an empty property to someone on discriminatory grounds. 

However, the Act also provides an exception for private homeowners who are sharing their residential home with another person.  In this situation, a homeowner is entitled to choose who they do or do not want to live with in their own home. Looking at this in its human element, many will consider that the notice given to Kristine was unreasonable and discriminatory, however it was determined that the landlord was legally entitled to act as she did.

In June 2020 the Human Rights Commission issued, PRISM: Human Rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand – A report with recommendations.  The report explores the human rights issues faced by these communities and offers recommendations on what can be done to achieve greater equality in all areas of life.

From an employment perspective, the PRISM report ultimately concludes that “all people should be able to bring their whole self to work and not have to hide parts of who are they are”, however, there is still a lot of work to be done to achieve that in Aotearoa.

The rate of unemployment for transgender and non-binary New Zealanders was double the national rate in 2019, with 11% of transgender and non-binary individuals reporting unemployment.  In addition to pre-employment discrimination, participants in the PRISM report also identified bullying and an inability to be their true selves at work (concealing sexual orientation, gender identities and expressions and sexual characteristics) as significant issues they face.

This leads to the question as to what rights transgender and non-binary individuals have if they feel that they have been discriminated against or bullied in the workplace?  At one level the answer is simple - they have the same rights as any other employee.  As a starting point, every person is entitled to a safe and healthy workplace.  Additionally, every person has the absolute right to make a complaint of bullying, harassment, or in relation to any other bad behaviour that they are subjected to.  

However, one potential barrier to justice for transgender and non-binary individuals, is that discrimination on the grounds of gender identity is not expressly included as a prohibited ground of discrimination in either the Human Rights Act or the Employment Relations Act. 

Therefore, where a transgender or non-binary individual considers that they have been discriminated against by their employer, or their colleagues, based on their gender identity, there is not necessarily a clear pathway for them to pursue such a claim.

That said, it is arguable that discriminating on the grounds of gender identity could fall within the scope of “sex” based discrimination.  This has not yet been tested in New Zealand’s courts, which is surprising given we know that transgender and non-binary individuals do suffer from adverse treatment within workplaces. It would seem that much of this suffering has been in silence to date.

Kristine’s case, though not employment-related, illustrates the struggles and adversity that transgender individuals, along with other members of the rainbow community, face regularly.

Legislative reform to include gender identity as a prohibited ground of discrimination would send a clear message in support of achieving equality for the transgender and non-binary communities.  If we truly want to establish diverse and inclusive workplaces, ensuring all members of our community are safe and able to be their true selves, is a good first step.

On a personal note, I appeared in Court last week and was, for the first time in my career, addressed as Mx Hornsby-Geluk. When the presiding Judge first said this I thought I had misheard – I was wondering who this Minx Hornsby-Geluk was. Then I realised that the Court had recognised my preference for a gender neutral honorific. It was both affirming and poignant. We have come a long way – we can and should go further.