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Trans Work Discrimination: Crunch Point?

Wed 6 Apr 2016 In: Comment View at Wayback View at NDHA

To her credit, Dakota Hemmingson (23) didn't accept the situation when, after she started transitioning, she was sacked apparently for no other reason than her disclosure of her gender identity. Ms Hemmingson is now off to the Employment Relations Authority, but it is uncertain what response she will encounter. Why? Therein lies a tale.   Full applause to Ms Hemmingson for having the courage to take matters this further and stand up for her right to employment security, and by implication, the rights of other transwomen and transmen at work. According to her, her dismissal reportedly has nothing to do with her competence and performance as a worker, it allegedly occurred solely because Barkers Hair Dressers facilely stated that Ms Hemmington's use of appropriately gendered clothing during her transition was "incompatible with Barkers corporate image." One wonders why any organisation thinks that it is okay to discriminate against a conscientious employee merely because she or he has gender dysphoria and is receiving hormonal, psychotherapeutic and surgical treatment to rectify that situation. Ms Hemmingson has also reportedly experienced trauma in this context as a result and has been forced to forego subsequent employment. But here's the crux of the situation. A decade ago, when then-Labour Carterton MP Georgina Beyer sought to introduce a private members bill to add gender identity directly to the anti-discrimination Human Rights Act 1993, Solicitor-General Dr Michael Cullen obtained a Crown Law Office opinion which stated that such reform was 'unneccessary,' because gender identity was a subcategory of gender and already covered under the legislation. Which is all very well. However, questions arise in this context. One is whether a Crown Law Officeopinionis the judicial equivalent of a full statutorychangeor not. Is it then to be regarded as adirectivewith the full force of law? The Key administration has said that it intends to follow the premise that this is indeed the case. If the Employment Relations Authority finds that this chain of reasoning is valid, then Ms Hemmingson's problems are solved, if it can be established that any process of unjust dismissal based on employment discrimination on the basis of gender/gender identity did indeed occur. However, there is the possibility that the Crown Law Office opinion does not have the effect of a more concrete legislative change, that gender identity isnota 'subcategory' of gender, and is thereforenotcovered under the current Human Rights Act 1993's employment antidiscrimination sanctions. If this indeed is the case, then will the Key administration act to correct matters, or will it merely state that this situation isn't one of its legislative priorities? Ms Hemmingson, her trans sisters and brothers, all deserve so much better than this. Why does she have to put up with the absence of certainty over whether she was 'justly' dismissed in this context, and indeed, why does every other transwoman or transman in this situation? Recommended: Michael Cullen: "Crown Law Office: Gender Identity:"Crown Law Office: 02.08.2006:https://www. beehive.govt.nz/sites/all/ files/SG%20Opinion%202%20Aug% 202006.pdf Corazon Miller: "Sex Change cost her her job"New Zealand Herald:13.03.2016:http://www. nzherald.co.nz/business/news/ article.cfm? c_id=3  

Credit: Craig Young

First published: Wednesday, 6th April 2016 - 9:49am

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