Legal protections that apply to trans people
The Human Rights Act 1993 prohibits discrimination on the grounds of sex. The same prohibition is also in the Employment Relations Act 2000. A Crown Law opinion released in 2006, citing decisions by Canadian, United Kingdom and European courts, found that the prohibition of discrimination on the grounds of sex in the Human Rights Act, includes a prohibition of discrimination on the grounds of gender identity. This means that trans people are protected under the Human Rights Act from discrimination on the grounds of gender identity.
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.
Discrimination in employment can involve:
- refusal or failure to offer an employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion or transfer as other employees with the same or similar qualifications, experience or skills working in the same or similar circumstances;
- dismissal or detriment by the employer or employer's representative in circumstances in which other employees doing the same kind of work are not, or would not be, treated in such a way; and
- retirement or being made to retire or resign by the employer.
The Employment Relations Act contains several provisions that apply when an employment relationship has been established. One of these is a duty of good faith, which includes employers and employees being responsive and communicative. Both employers and employees have an obligation to communicate openly and try to deal with any issues that affect their employment relationship.
An employer cannot pressure an employee to resign or create unfavourable working conditions in order to make that person resign. This is known as a “constructive dismissal” and may be the basis for raising a personal grievance under the Employment Relations Act. It may also be the basis for making a complaint under the Human Rights Act if the employer’s actions involved unlawful discrimination.
An employer cannot change the terms and conditions of the employment agreement without the employees consent. If an employer wishes to change the terms and conditions of employment, they must act in good faith and follow a fair process. The employer should demonstrate that there is a genuine reason, such as a business reason, for altering the terms and conditions, and should provide a reasonable opportunity to the employee to voice their opinion and any concerns. The employer must also consider and respond to any concerns raised by the employee.
If the employee believes that the terms or conditions of their employment have been altered to their disadvantage by some unjustifiable action by the employer, they may raise a personal grievance under the Employment Relations Act. Furthermore, if an employer alters the terms and conditions of employment to the employees detriment, or affords less favourable terms and conditions as a result of discrimination, this may be grounds for a complaint under the Human Rights Act, or a personal grievance under the Employment Relations Act.
See our solving problems section for more information.
There are some employment situations where it is lawful to treat people differently because of their sex. However, the Human Rights Act contains a general qualification, which states that an employer cannot treat people differently because of their sex if the employer is able to adjust some of the duties of the position (without unreasonable disruption to the employer’s activities) so that some other employee carries out the particular duties in question.
Where it is legal for an employer to treat people differently because of their sex, the employer should treat a trans woman (MtF) the same as other women, and a trans man (FtM) the same as other men.