Trans issues in the workplace: 4 controversial cases

Trans rights in the workplace has become an increasingly discussed topic in recent times. In 2022, the federal government added gender identity as a protected attribute in the Fair Work Act 2009. This was a milestone moment for trans rights. For the first time, Australian workers who suffered adverse action due to their gender identity were able to seek justice via the Fair Work Commission.

In the last few years, we have seen countless cases of workplace disputes involving the issue of gender identity and trans rights. Some of these cases have involved trans workers who were denied their right to express their gender identity. While in others, workers were dismissed for refusing to recognise the gender expression of others. In this article, we look at some of these cases that made global headlines in recent times.

Trans rights in the workplace: What the law says

Australian workplace discrimination law is evolving to provide stronger protections for trans and gender diverse workers. The legal framework is primarily governed by the Sex Discrimination Act 1984 and the Fair Work Act 2009.

The Sex Discrimination Act 1984 establishes the foundation for protecting individuals from discrimination on various grounds, including gender identity. It defines discrimination based on gender identity as any unfavorable treatment stemming from the individual’s gender identity, characteristics common to people of the same gender identity, or assumptions associated with that identity. This protection extends to individuals with intersex status.

In December 2022, the federal government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 came into effect. Prior to the Act, workers who suffered adverse action due to their gender identity could only lodge a complaint via the Australian Human Rights Commission. (AHRC)The Act introduced gender identity as a protected attribute to the General Protections provisions of the Fair Work Act 2009. This means that workers can now lodge an adverse action claim via the Fair Work Commission for gender identity-related discrimination or harassment.

Trans model sues NYC agency that said he was ‘insufficiently masculine’

In December 2023, the story of Candian trans catwalk model Frances Coombe made global headlines. The 30-year-old took legal action against New York-based modeling agency Muse Management, claiming his former employer killed his career. Mr Coombe, who had modelled for the likes of Marc Jacobs and Gucci, alleged the agency and its president violated his civil rights regarding gender identity.

His lawsuit sought more than US$300,000 in lost income and damages for emotional distress. Mr Coombe’s troubles with the agency started in October 2021, when he told the agency that he identified as non-binary. From this point onwards, he alleged that he experienced a hostile workplace environment. He claimed that the agency’s leadership told him that non-binary models “are not sought after in the casting process.”

“In the modeling world, non-binary does not exist”

Mr Coombe claimed that the agency resisted his new identify. He had arranged a photo shoot with the agency “to rebrand as a model with non-binary gender expression.” However, during the photo shoot, Muse insisted on him wearing women’s clothing, such as bikinis, rather than allowing him to wear men’s attire.

“In the modeling world, non-binary does not exist; we will still pitch you to clients as a woman,” Muse’s president Conor Kennedy told Mr Coombe. “In modeling life, you will be ‘she’ and ‘her’ until you arrive on set…”

The situation escalated when Mr Coombe began taking testosterone hormones in February 2022, intending to transition to a more masculine appearance. Despite this, the lawsuit asserted that Muse refused to accommodate Mr Coombe’s desire to work as a male model. This led to him being removed him from their website in May 2022. Mr Coombe alleged that he was told by company executives, including Mr Kennedy, that his appearance was “insufficiently masculine” for male modeling opportunities.

Less than a week following this meeting with Muse management, Mr Coombe met with two of the agency’s representatives on the men’s modeling board. In his lawsuit, he stated that he was misgendered by one of the representatives, who insisted on calling him “she” and “girl.” Mr Coombe told the representative that he did not want to be referred to that way. The representative responded by saying “I’m gay, so I call everyone she and girl.”

Model resigns

Further attempts by Mr Coombe to have his photos posted on Muse’s male modelling site were rejected by the agency. He subsequently resigned from the agency in March 2023. Subsequently, he found representation with WE Speak Model Management, an agency known for promoting diversity and inclusivity.

The lawsuit, backed by Mr Coombe’s attorney, Jillian Weiss, aims to highlight the importance of non-discrimination in the modeling industry. “This lawsuit sends a strong message,” Weiss told media. “No one should ever be subjected to job discrimination on the basis of their gender, even in a gendered industry such as modeling.”

Teacher dismissed for refusing to use student’s preferred pronouns

In March 2024, a UK employment tribunal heard the unfair dismissal case of a 60-year-old maths teacher Kevin Lister. The 60-year-old maths teacher had refusing to address a 17-year-old transgender student, known as Student A, by their chosen male name and pronouns. This decision ultimately led to his dismissal for gross misconduct in September 2022, following complaints from two students.

The tribunal heard how Student A revealed their gender transition to Mr Lister via email. After that revelation, Mr Lister then allegedly “humiliated” the student by writing his female birth name on the whiteboard. He then pointed at the name during lessons. However, Mr Lister defended his stance. He told the tribunal that the student’s wish to be referred by their male name and pronouns was “compelled speech.”

“She does not have the right to compel teachers and other students who do not share her views,” he told the tribunal. “I took issue with the demand on me to socially transition children who are unable to make an informed decision.”

“Obligation to teach facts”

Mr Lister argued that the school’s policy was to “encourage children to socially transition and to push them towards transgender lobby groups.” He stated that a teacher has an “obligation to teach facts.” He contended that the policy exceeded the boundaries set by the UK Equality Act. And that its alleged illegality encroached upon his rights and beliefs as an individual.

“It is not the role of a maths teacher to confirm the gender transition and social transition of a student,”

Mr Lister told the tribunal.

Legal representatives for the school however told the tribunal that the school’s policy did not prevent teachers from being “inclusive and treating people with respect.” The tribunal heard how Student A had asked Mr Lister if they could enter a maths competition for girls. Mr Lister replied “Of course you can enter because you are a girl.”

Asked if this was an insensitive response by the tribunal, Mr Lister said “No, that was a factual response. Student A is trying to subject me to compelled speech and the rest of the class to compelled speech.”

Teacher defends position

Mr Lister was also asked why he wrote the student’s “dead name” on the whiteboard. He said that she had entered the maths completion under that name. Mr Lister said “I don’t accept it was a dead name.” When Student A spoke to him after class, telling him that she feared she would do badly in the competition, Mr Lister offered words of encouragement, calling him “an excellent young lady.”

He told the tribunal that he wanted the student to “believe in herself,” but admitted that “maybe that was a clumsy thing to say.” Mr Lister also told the student that transitioning was irreversible. When asked about this statement by the tribunal, he remained steadfast. “That’s the whole point of it. That’s a fact,” he said.

At the time of writing, the unfair dismissal hearing had not yet reached a judgement.

Teacher fired for reading gender identity book to fifth graders

This story, which made headlines in August 2023, also features a teacher. However, this teacher was very much pro trans rights in the workplace. Katie Rinderle worked as a primary school teacher at Due West Elementary School in the US state of Georgia. She was dismissed by the school because she had read a book about gender identity to her fifth-grade class.

The book, titled “My Shadow is Purple,” was written by Australian author Scott Stuart. It is about a child who does not identify as a boy or a girl. However, Ms Rinderle’s choice of class reading material soon reached the school’s leaders via a complaining parent. The book was deemed to have breached the school district’s policies regarding teaching controversial issues.

Teacher is dismissed

The matter was soon posed to the regional school board, which voted 4-3 vote in favour of dismissing Ms Rinderle. She was fired for violating state legislation concerning censorship. One of the laws was the Protect Students’ Rights Act, which is commonly referred to as the “divisive concepts” law.  

Ms Rinderle subsequently took the school board to court. Her legal representation told media that her sacking “will result in more teachers self-censoring in fear of not knowing where the invisible line will be drawn.” However, the school board defended its position. It told media that the board was “very serious about keeping our classrooms focused on teaching, learning, and opportunities for success for students.”

Author defends teacher

The book’s author, Scott Stuart, publicly defended Mr Rinderle. He branded her dismissal as “disgusting” and highlighted that there is “nothing sexual or pornographic about this book.” Ms Rinderle also defended the book’s educational value.

“The district is sending a harmful message that not all students are worthy of affirmation in being their unapologetic and authentic selves,” she told media. The school board remained adamant in its stance. Via its legal representative, the board told media that “a one-sided viewpoint on political, religious or social beliefs does not belong in our classrooms.”

Trans barista fired for confronting woman who misgendered them

In May 2023, video of a transgender Starbucks barista Luna Spain arguing with a customer went viral on social media. The incident, which took place in Southampton, England resulted in the barista’s dismissal. The 56-second video starts with the customer taking issue with Ms Spain calling her transphobic. He then calls the customer a “Karen” before demanding she leave the premises, clapping in her face and refusing her request for a refund.

Spain further explained that she felt compelled to remove the customer from the store after repeated instances of transphobic behavior. Also, verbal abuse directed towards her and a colleague. Staff members and other witnesses corroborated Spain’s account, emphasising her efforts to de-escalate the situation.

“I’m the victim of a transphobic hate crime, but I’m being treated like a criminal,”

Spain told media.

For Ms Spain, the incident resulted in more than just her dismissal. It also saw her personal information, including her name, address, and contact details, shared online. This saw her face harassment and threats from transphobic individuals. Feeling victimised, Ms Spain expressed disappointment with how her former employer handled the situation.

No investigation

“I definitely expected disciplinary action, that’s what they said would happen, but I didn’t expect to lose my job,” Ms Spain said. “It’s like they were trying to do damage control. HR suddenly called me and pushed me to hand in my notice, and when I didn’t, I received an email terminating my employment one hour later. There was no investigation, no meeting, just a cold email.”

Starbucks, responding to inquiries about Ms Spain’s dismissal, stated that they have a zero-tolerance policy for such behavior. However, Ms Spain criticised the lack of a thorough investigation by Starbucks prior to her termination.

“I also want a letter of apology from my former employers for not investigating properly,” Ms Spain insisted. “I’m seeking legal advice about the customer lying about me, and the Daily Mail publishing my name, address and private photos without even asking me for a comment.”

Conclusion to: Trans rights in the workplace

Our team at A Whole New Approach are Australia’s leading workplace advisors. We can help you take action through the Fair Work Commission. If you have been unfairly dismissed, discriminated against or experienced adverse action, call us today.

We have over three decades of experience helping over 16,000 Australian workers make unfair dismissal and general protections claims. We possess an in-depth understanding of the Fair Work Commission and our reputation is feared by employers nationwide.

Call A Whole New Approach today at 1800 333 666 for free, prompt advice

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