Following Trans Awareness Week (13-19 November), now is a good time to consider whether your organisation should implement a Gender Affirmation Policy (GAP).

In this article, we discuss what employers and policymakers should consider when introducing, reviewing or amending a GAP, or what should be considered when exploring gender-related entitlements during the bargaining process for enterprise agreements. This is not intended to be an exhaustive guide but rather a set of considerations your organisation can use to begin the conversation.

What is a gender affirmation policy and why should your organisation have one?

Broadly speaking, a GAP is a policy document that outlines an organisation’s position and supports available for employees who are affirming, transitioning or questioning their gender identity or expression.

Many Australian workplaces are taking steps to build and retain diverse and inclusive workforces. In our view, a critical part of this journey is drafting and maintaining a suite of inclusive policies, for example, a GAP, a leave entitlement for cultural or ceremonial purposes, flexible work policies or parental leave policies that are gender-neutral and cater for parenthood via surrogacy, adoption, foster care or co-parenting arrangements.

While GAPs are fast becoming the benchmark for best practice across State and Local Governments¹ as well as the private sector, they may also go some way towards ensuring compliance with legislation, for example, as a reasonably practicable measure towards safeguarding the psychosocial safety of transgender and gender diverse employees (TGD employees) under new WHS regulations in force (or soon to be) across most of Australia.

A note on terminology

• Transgender and Cisgender
• Genderfluid
• Gender Identity
• Deadnaming
• Non-binary
• Intersex
• Gender Expression
• Misgendering
• Agender
• Queer
• Sexual Orientation
• Pronouns
• Assigned Male at Birth (AMAB) and Assigned Female at Birth (AFAB)
• Two-Spirit
• Brotherboy and Sistergirl
• Affirm, Question or Transition.

It is important that definitions are reviewed regularly to ensure that the language used remains respectful and inclusive. For example, while ‘transition’ is a commonly used term, it can sometimes be problematic as it implies that someone is ‘changing’ from one gender to another, when in fact, the person simply wishes to present in the gender that they have always innately identified with. For this reason, this article uses the phrase ‘affirming’ gender, rather than ‘transitioning’; however, whichever terminology is used is a matter for the person concerned because gender affirmation is a deeply personal process that can be as minor or as extensive as the person wants it to be at any one time.

Defining the above terms is beyond the scope of this article, but there are many useful and reputable resources to assist. For example, we recommend Pride in Diversity’s Let’s Talk Gender: A closer look at gender diversity within the workplace.

What should a GAP contain?

As a starting point, a well-drafted GAP should form part of a broader package of support designed to assist employees who may be in the process of affirming, questioning or transitioning their gender identity or expression. It is worth noting that this process is complex and can look different for every individual based on a variety of factors, such as cultural background, socio-economic status or broader lived experience. A GAP should form part of a broader workplace review which explores, among other things, issues such as expectations of dress code or uniform, bathrooms and facilities, leave, HR and payroll processes, regular training and consideration of policies relevant to bullying, discrimination and harassment through a gender-diverse lens.

An effective GAP is informed by and tailored to the lived experience and circumstances of employees and individuals, and as such, employers could liaise with an internal LGBTIQA+ resource group or even engage in an anonymous consultation process with their broader workforce to identify any individual needs or circumstances related to gender affirmation to reflect in a GAP.

At a minimum, we consider that an effective GAP should cover the following elements:

• Your organisation’s stance on diversity and inclusion, support of LGBTIQA+ employees and support for employees who may be affirming their gender identity or expression
• Communication that every person’s affirmation is different and will be treated as such
• Communication that all employees may use the names and pronouns they wish, as well as the bathrooms, facilities, dress and uniform that best correspond to their gender identity
• Supports and processes provided by the employer before, during and after affirmation, which might include key contacts or the development of a personalised ‘plan’ or ‘roadmap’
• An overview of any formal processes involved, which might include updating HR, IT and payroll processes (such as email addresses or logins) and broader preparation for return to work where applicable
• Leave entitlements for gender affirmation procedures, which might include medical, psychological, legal status and documentation-amending appointments or procedures
• Confidentiality, for example, indicates that a person can elect whether or not to disclose their gender identity at work and that such information will remain confidential unless agreed
• Information related to physical and psychological safety, harassment, bullying and discrimination, including links to policies where relevant and key contacts for who to approach with complaints, concerns or feedback, as well as the complaints management process
• Support and resources for managers and teams of the person affirming their genders, such as training, posters and checklists.

Of course, as above, a GAP cannot exist in isolation. To ensure that TGD employees are appropriately supported in the event they decide to affirm their gender in the workplace, we recommend ensuring that detailed roadmaps or process documents are developed by HR, as well as administrative checklists for HR, IT and payroll processes such as amending security passes and logins. This ensures that additional staff can step in to support roles confidently and ensures that formally approved processes are applied consistently across the organisation. You should also update your training for contact officers to ensure they are familiar with the GAP.

The requirements of the individual affirming their gender will vary greatly, and it is very important that this is always kept in mind. Any planning or process documentation needs to be high level enough to be flexible while providing enough detail to provide support to those involved in supporting an employee affirming or transitioning.

You should consult about your GAP as part of health and safety consultation, and be consistent with any consultation arrangements in your enterprise agreements.

Leave entitlements as part of a GAP or enterprise agreement

Increasingly, enterprise agreements are providing gender affirmation clauses and leave entitlements to employees. A review of recent enterprise agreement clauses providing gender affirmation leave entitlements has indicated the following regular characteristics:

• Number of days’ leave: 4 weeks’ paid; 48 weeks’ unpaid
• Eligibility of paid leave: For ‘essential and necessary gender affirmation procedures’ which are often broadly defined to include medical, psychological, legal status and documentation amendment appointments
• Notice and evidentiary requirements: At least 4 weeks’ notice and the employee may be required to provide supporting documentation evidencing their attendance at the requisite procedures
• How leave may be taken: Consecutive, single or part days (as agreed between the employer and the employee)
• Entitlement for casual employees: 52 weeks’ unpaid leave.

While most enterprise agreements providing gender affirmation leave reflect the above, some go further and cover the supports employers must provide before, during and after the affirmation.

While some enterprise agreements provide Gender Affirmation leave as a ‘lifetime of employment’ entitlement, if within your organisation’s capacity, you may wish to explore the possibility of offering 20 days’ paid gender affirmation leave per year.

Key takeaways for employers

Gender Affirmation Policies (and related leave entitlements) are quickly becoming permanent features of the modern and inclusive Australian workplace, whether introduced as standalone policies or introduced during enterprise bargaining processes. Such policies are not only now seen as best-practice, but may also become relevant to the obligation to manage psychosocial risks in the workforce which operates (or will soon operate) in most parts of Australia.

Just as the lived experience of all TGD employees is unique, so too should be each organisation’s GAP. However, there are several best-practice commonalities, such as providing a paid and unpaid leave entitlement, clear policy statements regarding diversity and inclusion, an overview of any formal and informal processes, as well as information regarding support, confidentiality and cross-references to safety, bullying, harassment and discrimination policies and procedures.

It is essential that a GAP be implemented as one part of a broader workplace package of support for TGD employees, which encompasses clear, consistent and regular training and guidance for employees as well as broader policy, HR and payroll process reviews, consideration of dress code and the use of gender-neutral bathrooms.

References

1. The LGPro Advocacy Agenda, published in October 2022, received strong support for gender equity work within the Local Government sector, but received feedback that it lacked appropriate services for other distinct communities within the workforce, such as First Nations, LGBTQIA+, disabled, Culturally and Linguistically Diverse (CALD) and veteran employees. Accordingly, LGPro has identified that this issue continues to require thought and commitment.

Kirsten Sullivan and Brayden Moulday also contributed to this article.

This article was originally published by Maddocks on 21 November 2022. The original article can be viewed here. This article has been republished with permission.

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