HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health... [2026] NSWCATAD 278 | Case summary | Zoe

NSWNSWCATAD

HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health District

[2026] NSWCATAD 278

NCAT Administrative and Equal Opportunity|2026-09-16|Before: P Roney KC, Senior Member M Maher, General Member

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2026-09-16

Before

P Roney KC, Senior Member M Maher, General Member

Catchwords

ANTI-DISCRIMINATION – TRANSGENDER DISCRIMINATION – HUMAN RIGHTS – transgender discrimination – where the applicant alleges unlawful transgender discrimination in in employment under sections 38A, 38B, 38C, and 53 of the Anti-Discrimination Act 1977 (NSW) – where an existing employee of the State operated health service applied for further position within the organisation but was required to disclose former names during recruiting process so as to expose him to a risk of disclosing his transgender status because of the gendered nature of his former names REMEDIES – DAMAGES – AGGRAVATED DAMAGES – APOLOGY – assessment of damages – whether the respondent’s conduct of the proceeding and warrants an award of aggravated damages – whether to order in injunction restraining discriminatory conduct – whether to order an apology

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Catchwords

ANTI-DISCRIMINATION – TRANSGENDER DISCRIMINATION – HUMAN RIGHTS – transgender discrimination – where the applicant alleges unlawful transgender discrimination in in employment under sections 38A, 38B, 38C, and 53 of the Anti-Discrimination Act 1977 (NSW) – where an existing employee of the State operated health service applied for further position within the organisation but was required to disclose former names during recruiting process so as to expose him to a risk of disclosing his transgender status because of the gendered nature of his former names REMEDIES – DAMAGES – AGGRAVATED DAMAGES – APOLOGY – assessment of damages – whether the respondent’s conduct of the proceeding and warrants an award of aggravated damages – whether to order in injunction restraining discriminatory conduct – whether to order an apology

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health District [2026] NSWCATAD 278

Hearing dates: 11–14 May 2026

Date of orders: 16 September 2026

Decision date: 16 September 2026

Jurisdiction: Administrative and Equal Opportunity Division

Before: P Roney KC, Senior Member
M Maher, General Member

Decision: (1) The complaint is upheld.
(2) The Respondent is to pay to the Applicant the sum of $35,000 within 60 days.

Catchwords: ANTI-DISCRIMINATION – TRANSGENDER DISCRIMINATION – HUMAN RIGHTS – transgender discrimination – where the applicant alleges unlawful transgender discrimination in in employment under sections 38A, 38B, 38C, and 53 of the Anti-Discrimination Act 1977 (NSW) – where an existing employee of the State operated health service applied for further position within the organisation but was required to disclose former names during recruiting process so as to expose him to a risk of disclosing his transgender status because of the gendered nature of his former names REMEDIES – DAMAGES – AGGRAVATED DAMAGES – APOLOGY – assessment of damages – whether the respondent’s conduct of the proceeding and warrants an award of aggravated damages – whether to order in injunction restraining discriminatory conduct – whether to order an apology

Since 2020, the Applicant has worked in the NSW Health Service. The date when he commenced that work, the information he provided it then and the process, he went through to obtain that job is important to this case for reasons we shall deal with shortly. He is also a transgender man who when he was born was given two non-family or first names, which he argues are considered to be typically names given to females not males.
He “presents as a man” to use the terminology he and counsel used throughout the case. Hence to a person meeting him, he would appear to be a man. In these reasons, we will use the Applicant’s preferred pronouns, which are he/him.
Also, in these reasons we refer in places to “cisgender” persons. That is where a person’s gender identity matches the sex they were assigned at birth. For example, a person assigned female at birth who identifies and lives as a woman, is a cisgender woman. It describes gender identity, not sexual orientation. Cisgender people can be straight, gay, lesbian, bisexual, or any other orientation.
Up until 2012, the Applicant lived as a woman and used the first and second non-family names day to day, but of course was referred to by the first name usually in his dealings with others. In early 2012, he began transitioning to live as a man, and around 2012 formally changed his first and middle name with the NSW Registry of Births, Deaths and Marriages to his current names, and for reasons later explained we find are names mostly or exclusively given to males.
Despite some suggestions to the contrary by the Respondent, the fact that the Applicant is a transgender man is a private matter he shares only with his most intimate and trusted connections because he is fearful of prying and hostile treatment. Disclosure to an employer or others in the workplace of those non-family names is, the applicant contends, something which would have the effect of “outing” him as having once identified or been identified by those who named him, as female, whereas his current non-family names would suggest he identified as a man and since he presents as a man, that is a consistent presentation.
There is evidence from an expert witness Dr Robin Ladwig, which we accept, that the inadvertent use of former names, or as they were also called “dead names” or “birth names” held prior to transition is likely to create significant distress to persons who are transgender. In contrast, for the vast majority of people in NSW who are not transgender, the disclosure of a formerly held given or non-family name (if one is held at all), is to be inconsequential.
The Respondent insists through the application of its systems and processes that if the Applicant wishes to apply for a different job in the NSW Health Service, he will be required to accept that it will divulge the fact that he previously used the other the first and second non-family names, and now has other (identifiably male) names to a member of his hiring panel (Job Convenor) and their chosen delegate (Job Owner). The asserted purpose of this is so that those persons may perform a “Validation” and a “Service” check, (which we shall refer to in these reasons as the Former Name Check Condition) despite written policies providing that a centralised People and Culture Unit should perform the task.
Until June 2023, after he had successfully applied for a temporary job role, the Applicant had not been made aware that the Respondent imposed the Former Name Check Condition on its internal job applicants. Because of it, he says he holds significant fear that he will be discriminated against and “outed” against his will, to those with whom he will work in any further role for which he applies. Despite being an early career social worker, this fear prevents him, he says, from applying for any other employment in the NSW Health Service again.
The Applicant contends that many other transgender individuals, most of whom change their name so that it aligns with their gender expression, suffer distress when their former name is used or disclosed. That is in contrast to most people who are not transgender (cisgender people), who if they change their birth name, have no reason to want to conceal that fact. Consequently, a significant proportion of transgender people who apply for jobs within the NSW Health Service are likely to suffer serious disadvantage in their ability to comply with the Former Name Disclosure Condition, when compared to cisgender people who will generally face no such barriers to or disadvantage in compliance.
The Applicant further contends that the Former Name Check Condition is not appropriate nor adapted to its purpose, in circumstances where all external applicants are required to provide their former names and aliases when applying for employment in NSW Health via the Respondent’s online Recruitment and Onboarding system (“ROB”) (such that any internal applicant will have already had their former name checked to achieve the NSW Health Service’s stated purpose).
The Applicant contends that the condition is not reasonable, and that even if the NSW Health Service can establish a proper purpose for insisting upon the Former Name Check Condition for internal applicants, a less discriminatory condition could be imposed; specifically, only requiring disclosure of a person’s transgender status to a Job Convenor or a Job Owner is unnecessary to achieve the stated purpose. The same purpose could be achieved by permitting disclosure only to a centralised unit, such as People and Culture, or the Employee Screening and Review Unit (ESRU), which is removed from the general workplace and the specific role being filled.
In these circumstances, the Applicant contends that the Respondent’s imposition of the Former Name Check on the Applicant as an internal applicant for a position constitutes discrimination on transgender grounds within the meaning of s 38B(1)(b) of the Anti-Discrimination Act 1977 (NSW) (the AD Act) and contravenes ss 38C(1)(a) and 38(2)(b) of the AD Act.

These two definitions of direct and indirect discrimination have been held to be “mutually exclusive”, meaning a person cannot claim at the same time that they have been directly and indirectly discriminated against on the same facts: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [13]– [16] per Bromberg J.
In the context of indirect discrimination, the terms “requirement” or “condition” in s 49B(1)(b) are given a broad, rather than technical, meaning; State of New South Wales v Amery [2006] 230 CLR 174 at [63]; Waters at 407 per McHugh J. However, for something to be a requirement or condition in relation to a matter it must be separate from that matter.
A person imposes a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed; Waters at 361 and 367 per McHugh J.
The existence of a term “requirement” or “condition” with which a person must comply is the essence of the concept of indirect discrimination. The thing with which a person must comply is described variously (even among the Commonwealth Acts), and with no real difference in treatment by the case-law authorities. Thus we have a “term” which “includes condition, requirement or practice” in Queensland, similar language of a “requirement, condition or practice” (in Victoria), a “particular requirement” in South Australia, a “requirement or condition” (in Western Australia and NSW), a ‘condition or requirement’ (in the ACT), a “condition, requirement or practice” (in the Commonwealth Age Discrimination Act 2004, and the Sex Discrimination Act 1984 and in Tasmania), a “term, condition or requirement” (in the Commonwealth Racial Discrimination Act 1975 ).
Identifying and describing the requirement or condition if there is one is a question of fact, Waters v Public Transport Corporation (1991) 173 CLR 349, 394 (Dawson and Toohey JJ). A requirement or condition need not be explicit: “it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination”: Waters v Public Transport Corporation (1991) 173 CLR 349, 360 (Mason CJ and Gaudron J), citing Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; Sackville and Stone JJ in Catholic Education Office v Clarke (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the AD Act has been infringed by indirect indiscrimination: Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 577.
Although the requirement or condition should be construed broadly, a fact finder must formulate it with some precision. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185 (Banovic) (Dawson J); Waters v Public Transport Corporation (1991) 173 CLR 349,393 (Dawson and Toohey JJ), 405 (McHugh J); New South Wales v Amery (2006) 230 CLR 174,212 [128] (Kirby J).
There is no real dispute in this case that there was the existence of a term requirement or condition with which the Applicant was required to comply.
Against that analysis, we turn to the facts of this case.

There was uncontroversial evidence from the relevant Director of People and Culture that access to an employee’s ROB file is very limited and confidential. In the ROB system only the recruitment team member for that particular recruitment process, a nominated Job Convenor and the nominated ‘job owner’ have access to the ROB file for the duration of the recruitment process only. After the recruitment process has concluded the Job Conveners and the ‘job owner’ cannot access the file again.
The Service Check Register for NSW Health is a state-wide database used to support effective recruitment screening and misconduct processes across all NSW Health organisations.
The Applicant is qualified as a social worker with a Master of Social Work degree, and did a student clinical placement with the Respondent. Then he applied for employment in a “Child Protection Counsellor” role using the Respondent’s online recruitment portal known as ROB, a system use of which is mandatory. As part of his recruitment to this role using ROB, he provided his former name in two ways, both of which related to criminal background checks. First, he provided a criminal history declaration for child related work. Secondly, he provided his consent to the Respondent to provide his former names to the Australian Criminal Intelligence Commission and police agencies for the purposes of a National Police Check.
At the time of his doing so the Applicant understood that the purpose was to verify his Working with Children Check and to obtain a National Police Check, both of which were subsequently completed. There is no dispute between the parties that all external applicants are required to provide their former names and aliases when applying for employment in NSW Health via the Respondent’s online recruitment portal ROB.
Several years ago, he was recruited to the Northern NSW Local Health District (or NNSWLHD to use its abbreviation used by NSW Health) to work in a specialist counselling service (which we shall refer to as the Specialist Counselling Service). He applied for a temporary role in the Northern NSW Local Health District’s program to support children under ten who have displayed problematic or harmful sexual behaviours (which we shall refer to as the Specialist Child Support Program).
Ms C was the Applicant’s clinical supervisor when he started in the role of Specialist Child Support Program Coordinator in 2023. Ms C was on the interview panel for the Applicant’s interview for the Specialist Child Support Program Coordinator role. He performed well in interview. She swore that it was clear he had “strong clinical practice, and a strong history working in child protection. He was a strong candidate for the role”.
On 1 June 2023, a Support Services Officer, we shall refer to as Support Services Officer J with the New Street program which is a service that sits under the Specialist Counselling Service network called him to confirm that he had previously had the names which were his birth names.
The Applicant felt humiliated that Support Services Officer J knew he had once gone by one or more female former names. At no stage during his recruitment had anyone advised him that those in his workplace would be made privy to his former names. The Applicant confirmed he had gone by those names, and the call ended shortly afterwards.
There is no dispute that this occurred because the Respondent imposes the Former Name Check Condition as a condition of employment of internal applicants, and that doing so requires that their former names be disclosed to Job Convenors (and Job Owners, often times), who usually work closely to the position being filled.
On 2 June 2023, the Applicant wrote an email to the Specialist Counselling Service Manager Ms A to express his concern about the lack of clarity around the disclosure of the use of former names in recruitment, and to suggest that job applicants be given an alternative so that someone else could complete the verification task. That manager apologised for his experience and agreed to escalate his concerns.
The Specialist Counselling Service Manager says, and we accept that after that email to her of him raising concerns about the recruitment process and the disclosure of his transgender status, she intended on following up with the People and Culture team in relation to the process of on-boarding to see if it could be varied so that staff do not have to disclose their former names, and inadvertently, their possible transgender status, to staff in their immediate workplace.
Having heard nothing from the Respondent regarding his concerns, around February 2024 the Applicant contacted the Clinical Lead Sexual Assault Services in Specialist Counselling Service, Ms C, in order to make a formal complaint. Ms C had been working in specialist sexual assault services for over 20 years. Her role included clinical supervision of the staff and to provide support to the sexual assault counsellors in the group where sexual assault services are offered. Ms C was the Applicant’s clinical supervisor when he started in the role of the Specialist Child Support Program Coordinator.
The Clinical Lead Ms C told the Applicant she would ask the NNSWLHD Human Resources Manager Mr K. The Clinical Lead, Ms C advised the Applicant that Mr K had responded positively to his concerns.
Ms C says that the NNSWLHD Human Resources Manager told her the Applicant could contact him directly and he would be “happy to have a chat with him about it.”
On 16 April 2024, the Applicant sent an email to that Human Resources Manager, Mr K, seeking to confirm that Ms C had spoken to him about his concerns, and asking how to make a formal complaint. The Applicant did not receive any reply from Mr K.
On 30 April 2024, the Applicant made a complaint to the NSW Ombudsman. In investigating the Applicant’s complaint, the Respondent advised the NSW Ombudsman that an explanation was provided to the Applicant and that no further concerns were raised by him. This, we find, was untrue.
On 6 August 2024, the NSW Ombudsman wrote to the Applicant suggesting that he approach Anti-Discrimination NSW. On 16 August 2024, the Applicant made a complaint to Anti-Discrimination NSW, and on 18 November 2024, he received a copy of a letter of the same date from Mr M, the Chief Executive of the Northern NSW Local Health District (NNSWLHD). In that letter, the Chief Executive explained that NNSWLHD had closed the Applicant’s complaint following what he said was advice and acknowledgement of the Applicant’s feelings in a phone call from the Northern NSW Local Health District Human Resources Manager earlier in the year. Again, we find that no such phone call occurred.
The Chief Executive further advised that in its recruitment processes, the Respondent’s staff members directly involved in hiring must confirm the former names of all job applicants with those applicants in every recruitment instance in order to verify that their former names were correct, irrespective if it had been confirmed before.
A brief was provided to the People and Culture Committee at the committee meeting in March 2025. The brief considered three potential options; first that all validation checks are undertaken centrally by the recruitment partner, secondly that all validation checks are conducted by the convenor of the panel and thirdly that the current system remain however all staff are reminded of confidentiality for information in the recruitment process. The outcome from the meeting was to recommend Option 3.
NNSWLHD decided it could not meet the expectations of the Applicant to make the changes to the ROB system as NNSWLHD is an end user of the ROB system and unable to make changes to the system. The issues were discussed at the People and Culture Committee and the members indicated that the change in option one was not practicable as it would slow down the recruitment process and given the volume of recruitment would place an overburden of work on the recruitment team. Option two, it said would dramatically increase workload for job conveners and increase the time taken to recruit.

The Respondent submitted in final addresses that the disclosure of the applicant’s former names has not necessarily outed him as a transgender person, and other witnesses did not have such an awareness of whether he was or was not transgender, merely by reason of having become aware of former names. The Respondent submitted that there was a conceptual problem with suggesting that just disclosing someone’s first names leads to the disclosure of that person’s transgender status. This seemed rather to be a suggestion that there needs to be some objective characteristic of those names that pointed to a person being transgender, rather than some subjective perception of anyone dealing with him from the Respondent’s side of what those names communicated.
The Respondent submits that those dealing with the applicant, and those he otherwise didn’t deal with objectively did not consider his disclosure was indicating he was transgender. The Respondent submits that the witness for the Respondent Support Services Officer J, tasked with obtaining his name information, said she had no idea he was living as a member of the opposite sex said, when discussing what the Applicant perceived to have been a disclosure that he was transgender, that she didn’t think at the time that this had occurred, and only did so until the applicant himself made a “joke” that she “now knew” about it. What Support Services Officer J thought or did not think does not limit the ways in which others might react.
The Respondent made reference to the President’s report on that issue. The President’s report does not in fact refer to Support Services Officer J’s state of mind in that regard, and nor does it matter if it did, since the characterisation of what the evidence shows, as identified in that report, does not bind us or narrow the scope of our inquiry, having regard to what that evidence shows.
In the end, the point being made by the Respondent was that there must be objective support for the proposition that disclosure of these names disclosed that he was transgender.
Although some of the witnesses who were asked whether they thought his first name was gendered, in the sense that it suggested he was female, not all took it that way. However, some did take it that way.
There is evidence from a Northern NSW Health Employee survey, which shows that 81% of workers speak only English in their home and that 80% do not identify as a cultural minority.
One of the exhibits was a book of children’s names, which identified his previous first name as a “girls” name. That, of course, is only an author’s conclusion and the research which stood behind it is not disclosed. Other witnesses certainly considered that his first name implied that the person with it was female.
More significantly, the second first name was almost universally accepted by those witnesses as suggesting the person was female. The book of children’s names also listed his previous second name as a “girls” name. The second name like “Margaret” as an example, is a name commonly in use in Australia and in other English-speaking countries, and we find that it is likely if not certainly one that conveys the idea that the person who holds it is female.
The Respondent submitted that many of the witnesses called in the Respondent’s case adopted name changes for various reasons. And they were not concerned at the change of name process or disclosure of that information, and that the Tribunal was required to assess the objective effect of such a change, not his subjective perception of what former name changes disclosed.
This submission is really missing the point, which is not that some staff members changed their names when they married and which inevitably involved a change in a surname, which would rarely, if ever convey anything about that person’s gender, or whether they had made a change to their identified gender.
The Respondent submitted that his manner of presentation is as a man. That we can say is clear. It was submitted that his presentation as a man with a first name that the Respondent says is not obviously gendered, indeed it says is a name that is sometimes chosen by transgender persons for its ambiguity. The Respondent cross-examined Dr Ladwig in order to suggest that his current first name was a transgender name. However, the expert’s evidence was that it was a particular but different type of trans-person name, identified as trans-masculine. In the end we do not consider that potential ambiguity about his present first name as a female or trans name assists us to decide what disclosure of his former names would reveal. No one said that they thought he might be transgender because of his current first name. And, his second current name is unambiguously gendered as a male name. And he presents as a man.
There is a common female version of that name however it is spelt differently. In relation to his current first name, there is no evidence that it is not a name attributed usually to males.
It is unnecessary to resolve the issue of whether the test is so-called objective or subjective, because we accept that his previous names, either individually or collectively, were objectively capable of conveying the impression that he had once been named in a way that identified him as female but which, when compared with his present first names suggested that he identified as male.
That he perceived that others in dealing with him would arrive at that conclusion does not mean that his understanding of or concerns about that were merely subjective. They were objectively a likely consequence of persons having come across those names, and the fact that some did not or may not have arrived at that conclusion, albeit relevant, is not conclusive.
The Respondent also submitted in final addresses that the Applicant was clear about when he first worked with New South Wales Health and at that time he had not chosen to live as a member of what the solicitor appearing called the “opposite sex”. By this, we take him to mean that he was living as or presenting as female. As to that, that much must be accepted as true since he did not transition until later. The Respondent went on from there to submit in final addresses that merely observing his former names did not disclose that he was a transgender person, and that he has never been misgendered. It submitted that merely reading a different name would not lead to the conclusion that he had formally been a woman or to outing him. It referred to the evidence of Dr Ladwig, the Applicant’s expert and their reference to the dead name or birthname.
In our view, that is not to the point because here full disclosure of former names, whether before working with the NSW Health or after, necessarily disclosed what were demonstrably gendered names and a change in the gender associated with those names, whenever those changes occurred.
It is accepted that workers may change their first names for a variety of reasons including to avoid detection by former violent partners. But those that do are unlikely to suffer stigma associated with changing their surname or even their first names, if it was to avoid detection by former violent partners or persons who had subjected them to domestic violence, or for some other reason they wished to be untraceable by someone in the community. That is because there is, we ascertain, no observable prejudice likely to flow to those persons from others within the workplace because they had wished to change their names for those reasons. Merely disclosing that you had a different name does not convey to the recipient of that information that the person had an attribute that might bring disdain or humiliation or hostility. They can comply with the term because there is no stigma attaching to that disclosure which would be likely to deter them from complying with it.
More significantly though, is that the need to protect those staff members who had changed their names for those kinds of reasons concerned knowledge by persons outside of NSW Health, not knowledge by persons within it. They are unlikely to be as concerned as the Applicant was about their being internal knowledge of the fact that there had been name changes of that kind. That is not to say that there would not be any such concerns of course.
As noted earlier in the reasons the Former Name Check Condition imposed as a condition of employment of internal applicants, required that their former names be disclosed to Job Convenors (and Job Owners, often times), who usually work closely to the position being filled. The role of Director of People and Culture in (formerly called, in a more self-explanatory way Director of Workforce) held by Mr B, was an overarching role in the employment and human resources functions for the NNSWLHD. The role involved the recruitment of staff and handling performance-based issues that arise. The Respondent submitted that Mr B didn’t have access to former names information unless he was the job convenor or job owner. That much may be accepted.
That does not mean, however, that the fact that a job owner or job convenor is given that information is something the Applicant ought to have simply dismissed as irrelevant or unlikely to lead to any disclosure or as to whether there was any risk of disclosure in circumstances where he could not control what disclosure occurred. We accept the Applicant’s evidence that the fact that he is transgender is a sensitive and private matter that he cannot tolerate being disclosed to people in his workplace without his careful and informed agreement.
In relation to the Applicant’s concerns associated with the risk of being outed, the Respondent says that it would amount to misconduct by employees if he was outed. The Applicant submits, and we accept, that the plausible fear of humiliation based upon being outed is enough to conclude that he could not comply with the condition in the relevant sense and it is not to the point that it would amount to misconduct for staff members to disclose this information. The fear of humiliation is sufficient in this cultural and workplace environment in Northern NSW.
We accept that complying with the Former Name Check Condition would create a real risk that he would be “outed” to others as a transgender man in his workplace. He lives and expresses his gender identity as male when he applies for work with the Respondent. He does this directly (through his representations to the Respondent), and indirectly, including by his use of “he/him” pronouns, and his first and middle names which we accept are names that most English speakers would consider are used by a man.
We accept that once co-workers or supervisors find out that he once went by the former names, the recipient of that information will almost unavoidably draw the conclusion that he is transgender. While some transgender individuals may, by reason of their birth name being gender neutral not face the same conclusion if their former names have changed, since, as we have found both his given former names are, as a matter of popular expression, given to members of the female sex many English-speaking recipients of that information are likely to note the incongruence of it with his male gender expression and presentation and conclude that he once lived as a woman.
We accept his evidence that for the Applicant to comply with the requirement, it would mean suffering significant and ongoing fear, stress, and anxiety that people in his workplace may discriminate against him, ask him invasive questions, spread gossip, or even subject him to aggressive abuse. We also accept his evidence that for him to comply with the requirement, it would infringe his dignity and sense of personal privacy, which is a cost he is unable to bear. It would affect whether he would apply for internal positions if it would risk him being outed.

Section 38B(1)(b) of the AD Act requires determination of the proportional impact on the ability of two groups to comply with the relevant condition. Discrimination will occur if the requirement or condition impacts more severely upon the group with the protected attribute than it does upon the persons without it (and the requirement is unreasonable): Queensland v Forest (2008) 168 FCR 532 at 535 [7].
For the purposes of identifying those two groups, we must identify the common attributes. Here, those common attributes are existing employees who know about the Former Name Check Condition, as it is knowledge of the condition that makes the Applicant unable to comply. The comparison is therefore to be undertaken between the likely respective proportions of cisgender and transgender employees who know that the Former Name Check Condition applies to their recruitment and who would be able to comply with it, against to the equivalent cisgender and transgender employee cohorts who know about the Former Name Check Condition generally.
In making that comparison we find on the evidence that transgender people form a very small minority compared to the overall NSW population. The evidence of Dr Ladwig, which we accept, is that as at 2025, approximately 1% of the Australian population, or approximately 275,000 individuals, are transgender. As a proportion, the NSW cisgender population likely totals approximately 8,494,000, compared to a likely transgender population of 85,790. Assuming then 1% of the Health Service’s employees are transgender, the Respondent employs approximately 1,383 transgender employees in the NSW Health, and approximately 136,943.73 cisgender employees.
Dr Ladwig’s other evidence, which we also accept, is that the prevalence of name changes, either socially or formally, among binary transgender people (that is, transgender men and women, excluding transgender people who are of a non-binary gender) is nearly ubiquitous. A 2024 report concluded that approximately 65.1% and 76.7% of surveyed transgender men and women respectively had obtained formal legal affirmation of their gender via changes to their sex assigned at birth and/or name change on official documents.
Dr Ladwig’s evidence is that name changes are a fundamental aspect of social, legal and medical gender affirmation for transgender people. Transgender men and women change their names in order reduce the risk of being misgendered, a commonly psychologically distressing experience. They are commonly known to avoid the disclosure of their transgender experience in the workplace to reduce fear of the risk of stigmatisation, discrimination, and distress, including sometimes avoiding applying for jobs altogether to mitigate inadvertent disclosure by qualifications and references that refer to prior names.
Dr Ladwig said that name changes among transgender and gender diverse people often serve as a key step in social (the process of aligning one’s social presentation including their name with their gender identity) and legal (updating legal documents to reflect a person’s gender identity) gender affirmation. These changes may reflect a desire to align one’s name with their gender identity, avoid misgendering, or ensure safety in personal and professional context.
Dr Ladwig said, and we accept that:

That failure, if it was one, did not adversely reflect on their evidence either. The topics covered by the question were dealt with broadly.
Dr. Ladwig was also criticized for not dealing in their report with whether name checks were a reasonable requirement, hence to know whether the fact that the applicant worked with children at risk was of significance. But Dr Ladwig was asked whether their opinions would change if they were told that the Applicant was working with such children and they said no. Therefore, there is no connection between information about the applicant’s specific workplace and that he worked with vulnerable children and the opinions expressed by Dr Ladwig in their report.
They also were criticized for using Canadian and United States data. Dr Ladwig actually does elsewhere reference Australian based data and they explained why they had made use of the overseas data.
The Respondent invited us to reject the conclusions of Dr Ladwig even though mainly their substance went unchallenged. We were invited to accept and prefer the evidence of Professor Breckenridge. The two experts dealt with mostly different topics and were akin to ships passing in the night. We have no reason not to accept their highly authoritative opinions on the issues we need to decide.
The Respondent submitted that the Tribunal ought to conclude that because a subset of cisgender employees (being cisgender women who have experienced domestic violence) may also experience fear or distress by being required to disclose their former names, the Applicant cannot establish that a substantially higher proportion of cisgendered employees who know about the requirement would be able to comply with it, compared to an equivalent cohort of transgender employees. There can be little doubt that sufferers of domestic violence may also feel distress or fear if required to disclose their former names. That is not the test and moves from an incorrect premise.
The Respondent submits that “a higher proportion of the relevant comparator group, such as women who are not transgender, equally likely experience distress when having to disclose former names”. This submission is based on the proposition that approximately 74% of the Respondent’s workforce are women and that at least 25% of these women may be victims of domestic violence and so may be unable to comply with the condition, whereas up to only 1% of the workforce may be transgender.
Accepting, as we do, that 25% of the female workforce of the Respondent is greater in number than the number of transgender employees, does not assist in identifying what proportion that transgender workforce is likely to be able to comply with the requirement, and what proportion of the cisgender workforce is likely to be able to comply with the requirement and whether the proportion of the cisgender workforce that can comply substantially greater than the proportion of the transgender workforce that can comply.
An expert was called for the Respondent. Jan Breckenridge is a Professor and Head of the School of Social Sciences at the University of New South Wales (UNSW Australia), and is the Co-Convener of the UNSW Gendered Violence Research Network. She expressed the view that:

Hence, we do not know what proportion of cisgender women who have suffered family domestic violence that have changed their name after suffering that violence, such that they may experience fear and distress from being required to disclose their former name because of its association with, or connection to, that violence. We can easily infer that not all or even most women who suffer domestic violence will change their names at any point in their lives. Some women who have suffered domestic violence will not have changed their names after having suffered that violence. Some may have; many may not have done so. The evidence that would allow detailed findings to be made about these subgroups is not put before us. But its mere identification as a subclass alone does not lead to any conclusion about the ability or not to comply with this condition simply because approximately 25% of women will experience domestic violence and therefore approximately 25% of women employed by the respondent may consider, or actually change their birth names, including their surname.
Even the internal policy documents created by New South Wales Health, recognise the stressors that exist around this issue.
In a letter dated 18 December 2024 to the Chief Executive of New South Wales Health, the Director of People and Culture Mr B wrote, in relation to the problem that this complaint raised, that storage and use of a person’s birthname in the way that it was being done, may inadvertently disclose a person’s transgender or gender diverse status to colleagues during a recruitment process. He agreed that knowledge of this risk of disclosure may create a barrier for transgender and gender diverse people applying for positions, because they do not wish to engage in a process that may potentially disclose this personal information. It goes on to refer to the fact that transgender or gender diverse people not currently employed in New South Wales health may not be aware that the system stores user’s birthname information in this way, but says it is difficult for some of the current transgender, diverse workforce to recommend New South Wales health as an employee because of the risk of disclosure of their status.
It refers to the assertion that it is contended that they are unable to make changes to the system managed by eHealth but invited the Chief Executive to consider the issue and how improvements could be made to the system to eliminate the risk.
Whilst this point was being made by the Applicant in oral argument, the solicitor for the Respondent objected and sought to argue that this letter did no more than seek to outline what the complaint was and did not accept that there were, in fact any such risks. The clear terms of that letter demonstrate otherwise. And the evidence of Mr B at paragraph 78 of his statement makes clear what the point of that letter was.
In the re-examination of the Applicant, evidence was elicited on a number of occasions where he had expressed his concerns about what he had observed about the way transgender persons were treated in that workplace, although they were not referable to him specifically. We deal with them in more detail in considering the question of compensation. The Applicant mentioned some of these to his Clinical Lead Ms C. Her evidence was that she did not recall those events, but did not specifically deny that they occurred.
It matters not in our view whether the applicant told her or not. We accept that he had those concerns and that he had experienced such incidents, and that they reflected some of the foundations for his fears and what his concerns were, and which led to him not being able to comply in the relevant sense because of those concerns.
As we have found the evidence establishes that many if not most transgender persons, including in this workforce, will change their names during their lifetime and will therefore have former and current names likely to imply a particular gender at birth and a different one later. For binary transgender individuals a common reason for doing so is to protect them from discrimination, stigma and exclusion.
Hence in our view it is correct to conclude that a substantial proportion of these individuals would experience fear and distress in being required to disclose their former names. While there is also harm associated with domestic violence, the Respondent’s reliance on it does not establish that a similar proportion of the cisgender workforce have suffered from it, have changed their names after having done so, and are likely to experience distress from being required to disclose that former name.
Nor in our view, were we to conclude that a similar proportion of the cisgender workforce have suffered from such violence, have changed their names after having done so, and are likely to experience distress from being required to disclose that former name, does this show that the requirement or condition does not impact more severely upon the group with the protected attribute than it does upon the persons without it. This is not merely a numerical comparison of objectively how many cisgender, compared to transgender employee cohorts can comply in the relevant sense. The cisgender workforce who has suffered from such violence, have changed their names after having done so, and are likely to experience distress from being required to disclose that former name may be simply another category of persons who may be being subjected to indirectly discriminatory conduct by the imposition of the condition, for example on the basis of sex in the case of the female workforce.
Section 38B(1)(b) of the AD Act requires a comparison between the proportion of persons who are transgender who can comply with the condition and those who are not transgender and can comply with the condition.
The comparison is therefore to be undertaken between the likely respective proportions of cisgender and transgender employees who know that the Former Name Check Condition applies to their recruitment and to see who would be able to comply with it.
We accept that amongst the common reasons for name change amongst cisgendered persons are changes to last names because of marriage or divorce, or general preference for different name. While some cisgender people may have a preference regarding use of their former names, none of those grounds would prevent them from complying with the Former Name Check Condition, because, as a general proposition, it would be unlikely except in a few cases to create a risk of distress or fear. Most people without special circumstances are not reluctant to disclose former names as it will not disadvantage them to reveal it.
In the circumstances, we find that a substantial proportion of transgender men and women employed by the Respondent would be unable to comply with the Former Name Check Condition. In contrast, it is not reasonably open to question that most cisgender people in Australia, to the extent they have ever gone by previous name at all, would have little difficulty with a workplace colleague being informed by their employer of a previous name that they had once gone by, for the purpose of obtaining a new job role.

The Respondent submits that the Applicant has failed to establish that he cannot comply with the Requirement because his former names are an insufficient indicator that he formerly lived as a member of the female sex.
That submission is based on Support Services Officer J’s evidence that she did not make such an assumption and that it is not an inference likely to be drawn given the diverse workforce of NSW Health.
We accept the evidence of the Support Services Officer J evidence that she did not make such an assumption. In the end she is just one person and her response or thinking does not detract from the fact that many given first names in Australia generally connote a male or female gender identity. The existence of names that do not have the same gendered quality does not affect the reality that many names are gendered. The evidence that transgender individuals commonly change their first names to align with their gender identity reflects this fact.
We find that the Applicant’s two former names, and certainly the second of them, are quintessential examples of names that are likely to carry the connotation amongst English-speaking people in Australian society, that their owner is female.
The Respondent also says, as we accept is the case, that its workforce is diverse. The test though is not whether, as it was put, “there is some common cultural awareness with gendered names that ... universally exist” in the NSW Health workplace. The workforce is located in Australia, and operates in an English-speaking environment when it discharges its professional functions. Hence, even if some employees, by reason of their background, do not consider certain names to have a gendered connotation, and at a level of generality we can accept that to be so, in our view transgender employees would reasonably apprehend that the disclosure of former names that carry a gendered connotation such as the Applicants’ names do will displace and highlight an apparent incongruence between that person’s gender expression presentation and former name.
The Respondent also submits that, because its staff have not directly discriminated against the Applicant, the Tribunal ought not to accept that the Applicant’s concerns regarding breaches of privacy, hostility and gossip are rationally founded or genuine. This submission does not focus on the context in which the protections in Part 3A of the AD Act arise. Characteristics that appertain to transgender people which are protected by s 38B(1)(b) are given a liberal construction that promotes the beneficial objects of the Act to protect of transgender people from discriminatory harm.
The Respondent submitted that:

The Applicant bears the onus of showing the term or condition was not reasonable: Nojin v Commonwealth of Australia [2012] FCAFC 192 at [180].
The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 (Styles); Deane J in Waters at 395-396 per Dawson and Toohey JJ, at 383.
Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83.
In determining whether or not indirect discrimination had occurred, the Tribunal should first consider the requirement itself – that is, independently of any alternative. The reasonableness of the condition or requirement is then to be considered with regard to the alternatives; State of Victoria v Schou (No 2) (2004) 8 VR 120 at [26]– [27]. The “reasonableness” of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case: Commonwealth Bank v HREOC (1997) 80 FCR 78, 111.
The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113.
The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters at 395.
The fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.
Adopting those principles, what are the considerations here? The Former Name Check Condition’s purpose is not in dispute. Its purpose, as put in the Respondent’s pleaded case is:

The Applicant’s case is that the real concern with the condition is that employees to whom the name disclosure is made are likely to be amongst his close working group, when it could, in fact, be handled further up the line of authority and his anonymity assured further up the line of authority.
Clarity was sought at the start of the hearing around what the Respondent’s case was as to the purpose of the former name check because it was not reflected in its pleadings. We were told that it was not an issue that the organisation needed to know the current gender of a person for clinical issues or for female-only roles, or the like. It said that there is no contention by the Respondent that the identity test is needed for current employees and it is only relevant for an initial services record check. But that said, its case was that it was reasonable, because all employees are required to show former names and current gender only, so the necessity to have knowledge of an employee or potential employee’s sex at birth is not a reason why the policy as implemented is unreasonable.
Also, during the openings, it was elicited that the Respondent’s case was not that it needed to know whether a person had a transgender history for the purposes of conducting an investigation, but that knowledge of that history might affect the way in which tasks were allocated to that person, having regard to patient needs and patient vulnerabilities or other operational considerations. It was to verify identity so tasks could be properly allocated.
In other words, it was contended that the necessity for this identity check and its reasonableness was not that it was justified on the basis that knowledge of someone’s transgender history or present transgender status or previously identified gender status was a matter of relevance. Rather its case, as opened, was that it reasonably ought to be allowed to ask and be told whether the person had aliases or other names which might expose whether they had criminal or other significant history such as a history of abusing children or the like.
The cross-examination of the Applicant did not focus on seeking to undermine his testimony on what might be seen as the obvious and significant topics in issue, but rather on what were relatively peripheral issues, such as why he reacted as he did, whether he reacted as he did, and the negative implications for him having his transgender status disclosed or him being outed, to use the language of the Applicant’s counsel in her opening.
The cross-examination of the Applicant seemed to be directed very broadly with the suggestion being made that because responsible individuals held his sensitive information, and they were sympathetic or empathetic to his position and to protecting his privacy and not having that information disseminated, it was not reasonable for him not to be concerned about that risk.
But he steadfastly maintained his position that notwithstanding whatever assurances he was given about sensitivity and confidentiality, that he did not accept them, or believe that there was no risk and indeed continued to believe, that there was risk, which significantly adversely affected him.
So, this challenge in the cross-examination of the Applicant was not directed to the truthfulness of his evidence, so much as suggesting he might not have reacted in the way he did, or that it would have been reasonable for him not to have acted that way. Many questions were directed to whether he accepted various other responsibilities, duties and commitments that he and others had within the health organisation. The point sought to be made by raising these issues was never clearly exposed.
Many questions in cross-examination of the Applicant seemed to be going to some contention, never actually fully articulated, that he had not in fact been frank with his employer and his managers, who have not previously had certain matters about his life disclosed to them. The questions went to whether he ought to have disclosed certain things or had engaged in conduct himself, which was improper. However, no such improper conduct was put to him.
Similarly, much was made by the Respondent of the fact that out of the Royal Commission into Institutional Responses to Child Sexual Abuse, there were examples shown of paedophiles having infiltrated systems and having concealed it, or lied about their identities, but this there is no aspect of this case that involves any suggestion that the Applicant or transgender persons generally were paedophiles or had infiltrated systems and having concealed it, or lied about their identities, nor that this evidence was a justification for the existence of the Former Name Check Condition.
In cross-examination, it was put, and the Applicant accepted, that it was the ultimate statutory duty of the Respondent to protect the paramount interests of the children in his care and this was part of government policy and legislation. The implication being that he somehow might be a person who would not.
There were many questions in cross-examination of the Applicant directed to other information about himself that he was compelled to and did disclose, such as his vaccination history and other issues, which seemed to be directed to identifying that he had in somehow or another inadvertently or indirectly disclosed his transgender status to others. What relevance that ultimately had is not apparent, since it was not the Respondent’s case that he did inadvertently or indirectly disclose his transgender status to others in the workplace or otherwise show the Respondent was already aware of that transgender status.
But if it was the Respondent’s case that he did otherwise disclose or it was aware of that transgender status, that would go to establishing that this procedure was not necessary if there be reasons to understand whether someone who was transgender or not, for professional management purposes and other management reasons.
In cross-examination the Applicant said he understood and accepted the need for identity checks to ensure people did not avoid detection. At one point, he was cross examined about what it was in the statement of the witness Mr B about community expectations that there be a thorough screening of applicants, particularly in child-related work. But this is contrary to part of the case the Respondent was seeking to make out, which was that the purpose of the procedure was to check former sexuality to see if these persons are really male, which in turn was designed to ensure control over who had contact with vulnerable children in child related work.
The Applicant submitted that the policy justification for this procedure is marginal at best. That is because for existing employees it is a mere double check for error and the specific checks in relation to aliases and other identities have already been made. At that stage, it is submitted, there is no need to check former names. The evidence was to the effect that unless there was an error in the system, the data validation process is not going to produce significant benefit to the Respondent.
Here it was pointless to check the former names which the Applicant ever used because this Applicant had only ever worked for this Respondent under his current name. Any check in relation to his employment history with the Respondent would only ever be in respect of that name. The Check Record of records of misconduct under his birth name could not show any misconduct that he had engaged in while working for it, because he never had that name with them. The evidence is that this is a data validation check.
Thirdly, the check is not reasonably necessary because only existing staff are told of it, as he found out after he had applied for the internal position and been effectively the chosen candidate.
The Director of People and Culture Mr B, said in cross, examination that the system made no reference to it being used for a service check and it didn’t put staff on notice as to how it was going to be used. In other words, when employees completed the information forms which required the disclosure of those names, there was no disclosure that they would be used at some later stage in a further check or who would be privy to that information. They could probably be concerned that others within their working group might find out. Hence the risk that they would not provide the information and lose that job opportunity.
The form did not put staff on notice as to how it was going to be used and that this therefore makes the disclosure technically involuntary and causes involuntary outing, which makes the process even more notably unreasonable.
In cross-examination, it emerged that the National Police Check consent form was first signed when the Applicant first went to New South Wales Health, a significant time before any of these events occurred.
In his submissions the Applicant contends that the Respondent identifies no proper basis for why Job Owners and Convenors, as opposed to members of staff outside the immediate workplace, should or could perform the checks that the Respondent considers necessary.
The Respondent on the other hand submitted that the following were relevant considerations to show the condition was not unreasonable:

As for the matters in (a) to (i) listed above, as factual matters, there is no real controversy. They do not, however establish that imposing the condition was not unreasonable. They show the scale of the operation, the systems in place to protect confidentiality, discourage the bullying harassment and discrimination of staff. They show the Applicant knew of these and similar things. They do not show that his privacy around his transgender status was absolutely assured, nor do they show that he must have reached the conclusion that it was assured. His own lived experience showed otherwise.
As for the matters in (j) and (k) listed above, some of what has been said about child sexual abuse and that perpetrators can and do change their name after detection or disclosure was unfortunate, and rather missed the point. The assertion that it is incumbent on the Respondent to do everything it can to ensure that there is no opportunity for someone to use a name change to ‘slip through the cracks’ when changing roles or moving between health organisations and the suggestion that some health care practitioners do not engage in professional or ethical conduct and can harm young persons and vulnerable patients in the course of their employment is probably correct. That does not alter the fact that the Former Name Check Condition could never have functioned to deal with those problems, or if it did, it did so only at some level of abstraction.
It is common ground that NPCs are not required for internal applicants like the Applicant who have not changed their names after the last NPC was performed. Those matters listed above as relevant, even if accepted, do not identify that any real risk is being managed when an employee changes jobs and has not changed their name since commencing with NSW Health.
The Respondent says that the justification for requiring internal applicants to re-disclose former names that they had prior to commencing employment with NSW Health is to perform data validation checks in the ROB system: see Respondent’s Submission paragraph 61(g). The limited purpose, while not impugned, is material to assessing the reasonableness of the requirement when it otherwise has a discriminatory effect.
Otherwise, the principal basis upon which the Respondent appears to contend that the Requirement is reasonable is that it would be costly for it to implement changes: Respondent’s Submission paragraphs 64-65.
The Respondent submits that the Manager, Employment Screening and Review Unit (whom we shall refer to as Ms V) said that workers were required to disclose all former names because since they were working with children, which was a privilege and in respect of which there was high community expectation that a candidate and full disclosure of names was necessary.
Although that probably overstates the position of Ms V, it did not seem to be ultimately controversial, because the Applicant did not suggest that it was not reasonable to have a policy which required disclosure of names where working with children, including vulnerable children, would be part of the work.
The Respondent submits that the fact that there is a reasonable alternative that might accommodate the interests of the Applicant does not of itself establish that a requirement or condition is unreasonable.
The Respondent submits that “what the Applicant desires is in any event quite unreasonable because at the time he was being recruited to the role of Specialist Child Support Program Coordinator, the Recruitment Policy did not have the capability for conducting data validation checks in any other manner”. It submits that the subjective preferences of the aggrieved person cannot be determinative of the reasonableness of the requirement, although it may be relevant in assessing whether the requirement is unreasonable. It submits that NSW Health is an incredibly large and established organisation employing people from a cross-section of society. NSW Health recruitment processes are designed to ensure efficiency and attracting and retaining the best staff to the roles.
It says that above all, the recruitment policies and procedures are intended to ensure the interests of public and patient safety, which are paramount. It submits that the “subjective preference of the Applicant, to not have to confirm his previous names on internal recruitment, cannot be determinative in finding that in all the circumstances the Requirement is reasonable to ensure patient safety” and that in all the circumstances “the only reasonable and logical conclusion is the Requirement is reasonable [sic]”.
We reject the contention that in all the circumstances the requirement is reasonable to ensure patient safety and that in all the circumstances the only reasonable and logical conclusion is that the Former Name Check Condition was reasonable.

The evidence of Ms T (the Associate Director), who is employed by the Secretary at the Ministry of Health, in the role of Associate Director, Human Capital Management (HCM) Governance was important and came at the end of the rest of the evidence. She was the witness closest to the Minister in the hierarchy of witnesses in the proceeding. The Associate Director was a witness of unimpeachable credit and we accept her evidence in its entirety.
What she had to say had changed significantly between when she gave her statement in February 2026 and when she came to be cross-examined at the hearing.
The Associate Director is responsible for overseeing the governance of Human Resources systems for NSW Health including ROB. The Service Check register (SCR) is used during internal or external recruitment activities to notify whether the applicant for the role may have a history that could present a risk in the role to which they are being recruited. If an SCR entry exists for an individual, it means that they will be identified as a potential risk and a risk assessment will be undertaken to understand whether they can perform their role.
SCR checks are conducted for every recruitment, regardless of if the applicant is an internal or external candidate. The SCR check is an automated check which checks against all names (including disclosed previous names and aliases) in the internal system.
She said that in 2017, eHealth NSW partnered with NSW Health organisations to implement the ROB System for all NSW Health organisations.
The ROB System is strictly confidential and only accessible to provisioned users. But those users might be Recruitment Unit users; the convenor/job owner for the recruitment action, (depending on the LHD) Health Assessors/ OASV Assessors; anyone in the LHD who is assigned Panel Member and attached to the recruitment action as a Collaborator; and anyone in the LHD who is assigned Panel Member and HR View Only for that recruitment type.
In 2025, approximately 66% of candidates across NSW Health, who applied for roles through the ROB system were identified, as was the Applicant, as internal to NSW Health. She said in her statement that the option for mandatory name checks to be performed by a person outside of the workplace, such as People and Culture or the ESRU and that implementing such a method would be costly, lengthy and a complicated process.
When it was made clear to her during cross-examination that the issue was really about who did the data verification and as to her contentions that the ESRU would be stretched too thin, she acknowledged that this view was based on an assumption that it did not have more staff available to it. The ESRU didn’t come within her remit.
She was taken to a document which was appendix two to the NSW Health Policy Directive in relation to recruitment and selection of staff. That appendix dealt with time frames for standard recruitment and selection processes, and its provision to allow five days to conduct all mandatory, checks and verifications required for a position, as well as assess outcomes and checks and verifications, and take any required appropriate risk management action. It provided time frames for having checks and verifications conducted centrally by the HR/ Recruitment Unit and directed staff to “utilise any known information, but not spend money or time on external validations, where valid information is already available”. It was put that this policy said that the checks were to be done by People and Culture.
Once shown this she accepted that this demonstrated her view that it would be a complex and expensive process to change the present practice was not correct. She had not considered that document.
She agreed that after the ROB system was introduced in 2017, she had suggested changes, and if the ROB system had been shown to have required the job named verification to be done by People and Culture originally, then there would be no need to change it now.
She accepted that in the checking process there could be a tick a box system whereby an agent ticked, if that person had any safety concerns that suggested that verification should occur outside the work group. She was unable to say, if limiting the form in that way would be less likely to have people tick that item.
When asked if fear of disclosure of being outed to colleagues was something recognised as affecting work, health and safety of employees, and whether it should be prioritised, whilst acknowledging that this was a value judgement she couldn’t say if it could be prioritised, but agreed that that fear could affect the workplace health and safety protections in the workplace.
She acknowledged that under NSW Health Policy identified as the NSW LGBTIQ+ Health strategy, which is current, health staff who are LGBTIQ+ were listed as a priority group. The strategy document describes itself as arising out of an organisation wide survey. At page 18 of the health strategy document, it identifies as one of the priority groups, health staff who are LGBTIQ+ and that, amongst the list of many items as a factor that impacted health and well-being, that there was fear of disclosure of being LGBTIQ+ to colleagues, and a sense of isolation, in working environments.
But in cross-examination she accepted that the critical data validation process, if completed externally, that is outside of the Applicant’s work group, would take only five to ten minutes altogether per potential employee. Sixty six percent of the 2781 applicants (in 2025) offered positions within NSW Health were internal applicants, not new potential employees. Hence, if there was no former name in the system, there would be no need at all for a validation test.
In cross-examination she accepted that even if half were to be checked or required to be checked, it would take an hour of work per day, which could have been allocated across nine people in the group who might perform this. In the Northern District, there are non-HR staff in her team and the recruitment service.
The re-examination did not focus on her evidence on these issues or seek to diminish or explain its effect as being other than the way it had emerged in cross-examination. Indeed, the re-examination focused upon the fact that she had a middle name which was commonly in use for both males and females.
The result is that conceptually what is sought to be achieved by this check on identity could be done within the People and Culture recruitment unit without a costly, lengthy and complicated process.
The Applicant submits that to be asked to spend one hour per day on this exercise for this Northern District is not an impermissible or unreasonable burden, and that having regard to that, it is unreasonable to have imposed the term when an alternate method to achieve the same outcome could be achieved without the discriminatory effect. We accept that submission.
Further, there has been a review process under way for this procedure for a considerable period, which the Associate Director described. It had been under review for a considerable period already, since 2025, and there were already identified ways in which the procedure could be changed or removed entirely, including such things as facial recognition and other things. The process of changing and/or removing this procedure is clearly in training.
In relation to the Health Share unit, which is centralised unit 183, the Associate Director said that the team there had changed over time and it had substantial resources within the group. Hence it might be possible for this former name test to be conducted so it was taken out of the hands of the Job Owner, or other person in an Applicant’s personal working group.
On the issue of the proximity of the job owner and job convener to the applicant and the potential embarrassment and humiliation engaging with them presented to the applicant. In the Points of Claim, at paragraph 27, the Applicant pleaded that they were proximate. In the points of defence at paragraph 27, this was admitted.
We accept the submission that there is no suggestion that if this job was done externally, that the Job Owner or Job Convenor would find out that applicants had changed names so as to potentially out them as transgender.
We do not accept the contention that this check could not be done within the People and Culture recruitment unit or elsewhere without a costly, lengthy and complicated process. We prefer the testimony of the Associate Director that says otherwise.
But even if it would be costly for it to implement, it is not a sufficient basis alone for the Tribunal to conclude that the Requirement is not unreasonable. That is particularly so in circumstances where the evidence does not appear to demonstrate that the Requirement, as a matter of practicality, actually has any substantive or even actually useful, managerial role to play in managing the risks that have been identified by the Respondent. It is there in the Statewide set of procedures NSW Health applies, and despite its discriminatory effect it remains there despite having no practical use in its application to someone in the position of the Applicant.
The Applicant also submitted that there were obvious other ways in which the outcomes sought to be achieved here could be achieved without the imposition of this term.
This Condition only came into effect 2017 well after the AD Act prohibited transgender discrimination. A party cannot be heard to say we brought in a system that was discriminatory against transgender persons, but it is unreasonable to require it to replace it because it has have made it too expensive or difficult to do so.
The Applicant also submitted that the Respondent cannot be heard to say it is reasonable to be permitted to be discriminatory against transgender persons even and although the prohibition on doing so existed when the Condition was first put into place, because it is too late or too inconvenient now or too expensive to change. There is merit to that submission in this case.

The Applicant claims non-economic loss because of the Respondent’s Former Name Check Condition. The Applicant sought orders pursuant to s 108(2)(a) of the AD Act, that the Respondent pay to the Applicant compensation for his loss in the sums of $45,000 in general damages for his non-economic loss. He did not press a claim for, damages for a claimed lost opportunity to obtain further work.
In its final addresses, the Respondent submitted that since the period in respect of which the conduct occurred was the first June 2023 to 6 August 2024, and since this was the period in question, the Tribunal could not consider conduct outside of that period, or other than that identified in the President’s report and referral. It is not obvious what the significance of that proposition was, and what conduct relied upon fell outside that window. If it was to suggest that consequences for the Applicant which presented after that period and may even be ongoing, but which were consequential upon that conduct were not open to be considered or the subject of compensation, that submission is clearly fallacious.
First, he says he will not be able to apply for any further jobs with the Respondent while the Former Name Check Condition remains in place and will be required to leave to work in the private sector if he wants to take a further job or advance in his career. We accept that to be the case.
The Applicant says it has also prevented him from applying for at least two new roles advertised by the Respondent since he first learnt of it in June 2023, both of which were likely to have paid him more than his current salary.
Secondly, since learning of the Former Name Disclosure Condition, he says he has experienced ongoing anxiety and distress that has continued to escalate seriously. He has endured panic attacks, rapid breathing, and from time to time can only manage two to four hours of sleep when he is required to engage with the Respondent about the matter. He describes feeling sick to his stomach when considering that he could be outed, a fact that he is reminded of daily.
The Applicant says he feels angry, frustrated, and sad by the fact that in order to take another job in the NSW Health Service, he would be required to compromise his dignity and his privacy.
The Respondent submits that there is not enough evidence for the Applicant to be awarded non-economic loss.
As for the effect his potential outing would have, the Applicant said in re-examination, that he had spoken to Ms C and staff of the Respondent about other incidents that he saw as adverse to transgender persons. Those included an incident where a staff member had called a transgender person, “really a man”, and a staff discussion about a TV program called “better date than never”, involving a trans-man, during which there had been negative comments about transgender people using preferred pronouns. These reports by him were made to ensure he didn’t have to deal with the same sort of issues. They reflected his concerns. He explained that it was not enough that those to whom he reported were working only for the one confined service, because even if it was kept safe within that part of the organisation, that would not prevent it being used elsewhere, if he sought work elsewhere in the organisation.
The Respondent submits that there is no medical evidence, but for claims such as these, there is no obvious need for the Applicant to have adduced medical evidence. The harm caused by discrimination is not required to rise to the level of diagnosable psychiatric harm in order to be compensable.
Whilst it is true that he did not take sick leave and there is no medical evidence to support his claims we do not consider those matters to be sufficient to reject his otherwise unchallenged evidence as to the way in which he was affected by what occurred to him. There was no cross-examination to challenge those matters in the way they were set out in his supporting statements.
The amount sought non-for economic loss when final addresses were held was the sum of $45,000. No particular decisions were referred to us as comparators to support this claim. No submissions were made as to what an appropriate award of compensation should be if we were minded to make such an award. The sum of $45,000 was sought by the Applicant. We were left unassisted by any submissions on behalf of the Respondent on the quantum issue.
The Specialist Child Support Program team had only a few people, the Child Protection Counselling team had a few as well, and the Specialist Counselling Service team had more than 50. The Applicant lived in a small, close-knit community outside the capital cities. He says that gossip is common there. The fact that he is transgender is information that he shares only with people he trusts, such as close friends and family members. Some members of his own family are not aware that he is transgender. He was not openly ‘out’ about being transgender in his job, to colleagues or the members of the community. He avoided sharing information about life events that may indicate he is transgender or was assigned female at birth. He does not share this information with people because he often does not feel it is ‘safe’ to do so. Even in circumstances where he considers a person may be safe to disclose this fact to, it is a deeply personal matter that he does not share and is uncomfortable sharing.
He was fearful that his identity as a transgender person working in a local health district, particularly with vulnerable children and their families, might be made available to the public through the imposition of the condition.
He had difficulty falling asleep and remaining asleep, getting as little as 2 to 4 hours of sleep in the week before and after direct contact with the Respondent about his concerns. This happened again when there was a conciliation on 6 February 2025.
He often experienced an elevated heart rate and difficulty managing the onset of panic attacks for days at a time, usually triggered by direct contact about his complaint. This has occurred particularly when he felt that the Respondent dismissed or minimised his concerns because he was anxious that they won’t act in ways that protect his privacy and dignity throughout these proceedings.
He also experienced feelings of hopelessness, and had difficulty engaging with work and social activities. For example, in 2024 he was asked to present at a Specialist Counselling Service forum about a program he was running with a local LGBTIQ+ charity. He declined, because he was worried about being outed to his colleagues, and then didn’t attend the forum at all. There are also local LGBTIQ+ events he has not attended for fear of being outed to his workplace and wider community.
In his 2026 statement he said, and we accept his evidence to be truthful, that:

The Respondent submits that at a time when he says he was affected by the Respondent’s discriminatory treatment of him the Applicant had been preparing for a wedding and had not disclosed his transgender status to his wife’s parents. It says that he was suffering from distress or stress as a result of that. It submits that the applicant said that he cannot have been “sick to his stomach” by the events that were the subject matter of this proceeding because he took no sick leave from work to deal with those issues. The Respondent also submits that the Applicant had said what affected him was really his own stressful life arising, amongst other things, from him not telling his parents-in-law that he was transgender and that he took leave not for sickness but to attend and celebrate the wedding.
We reject that submission as having no substance and as being contrary to the evidence. One can deal with stress and other health concerns without having to stay away from work. Even if he was preparing for a wedding and had not disclosed his transgender status to his wife’s parents and was suffering from distress or stress as a result of that, it did not mean we should not accept his evidence about what he said were the effects of the imposition of the condition upon him. That he had a somewhat stressful life does not alter the fact this his treatment by the Respondent caused him stress.
As for the quantum of any award, recently in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 the primary judge ordered the respondents Giggle and Ms Grover to pay Ms Tickle compensation in the sum of $10,000 pursuant to where the applicant registered for the respondents’ women-only mobile phone application but where access was granted by AI software but then restricted upon review by an individual. The customer sought re-admission to the application and the respondents refused. Ms Tickle was assigned the male sex at the time of her birth. Following sexual reassignment surgery, Ms Tickle was issued an updated Queensland birth certificate that records her as being of the female sex. Ms Tickle also used, and is referred to by, female pronouns.
The primary judge made a declaration that the respondents engaged in unlawful indirect discrimination under s 5B(2) of the Sex Discrimination Act 1984 (Cth) but held that aggravated damages should not be awarded save with respect to a limited aspect of the conduct of the trial by Ms Grover and Giggle. It was held that she was discriminated against when she was excluded from an app for being transgender. The Court found Ms Tickle was directly discriminated against on two grounds because of her gender identity.
There were various appeals against these orders on the grounds that his Honour was wrong to uphold the claim of indirect discrimination for various reasons. The applicant customer argued on appeal that an award of at least $30,000 in general damages and at least $10,000 in aggravated damages should have been made. The Full Court allowed $12,000 for general damages and $8,000 for aggravated damages in substitution for the award made by the primary judge. The Full Court found that the respondents saw Ms Tickle as a man and were motivated to exclude her from the Giggle App for that reason. The primary judge concluded that Ms Grover had a genuine belief that Ms Tickle was a man, not a woman, and this was not challenged in the appeal.
In the decision in the Full Court, Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 (Giggle for Girls), Abraham and Kennett JJ, with whom Perry J agreed on this issue, held:

The applicant is seeking aggravated damages, which, although not in the points of claim, was raised as a remedy in submissions and so therefore is open to be considered. Part of the basis for that claim concerns how the hearing was conducted as well as some things said in written submissions filed earlier in the proceeding.
In final submissions, $20,000 was sought in that regard, on numerous bases. It may be accepted that such damages are open to be awarded in these cases; Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 at [328].
In Elliott v Nanda (2001) 111 FCR 240 Moore J at [180] referred to a range of authorities, including discrimination cases, and noted that it is “generally accepted that the manner in which a defendant conducts his or her case may exacerbate the hurt and injury suffered by the plaintiff so as to warrant the award of additional compensation in the form of aggravated damages”. His Honour noted at [181] that, in the context of anti-discrimination law, “a wide variety of matters may affect the decision to award aggravated damages in any particular case”. He stated however, at [182], that the stress of litigation is not, in itself, sufficient to attract an award of aggravated damages: “the defendant must conduct his or her case in a manner which is unjustifiable, improper or lacking in bona fides”.
In Lucy Orchard v Frayne Higgins [2020] TASADT 11 the Tasmanian Anti-Discrimination Tribunal made an aggravated damages order against a Toll Transport courier. The claim was one concerning sexual harassment and the guilty party had written to her threatening to sue her for defamation. In Font v Papale Pearls [2002] FMCA 142 Raphael FM awarded $7,500 in exemplary damages awarded for the ‘unjustifiable and inappropriate’ manner in which the respondents had conducted aspects of the proceedings. Those are but examples.
We respectfully adopt what was said in Giggle for Girls in relation to the circumstances for awarding aggravated damages and note that there the Full Court accepted that there is aggravating conduct in public commentary on the actions that are the subject of the complaint, including aspects that are gratuitous to the proceedings. The commentary, and evidence in the proceedings, used language which portrayed the applicant as a predatory male, seemingly to justify her position and evidenced a campaign against her in respect to the acts that are the basis of these proceedings which were gratuitous to the proceedings. That aggravating conduct described above, warranted an award of $8,000.
One of the issues flagged was that the way in which this proceeding was being conducted by the Respondent would affect such an award of damages. Reference is made earlier in these reasons to some of the suggestions made to him during cross-examination and the implications they carried.
The Applicant swore that he had read the Respondent’s submissions filed in these proceedings on 6 February 2026 and found them to be deeply hurtful and at times insulting.

The Applicant sought orders pursuant to s 108(2)(b) of the AD Act, the Respondent be enjoined from implementing the Former Name Check Condition and pursuant to s 108(2)(c) of the AD Act, an order that the Respondent implement what the Applicant calls the “alternate recruitment method”. The alternate recruitment method is one where instead of disclosing former names to hiring managers and their delegates, it would be reasonable for the Respondent to offer internal applicants, when they begin their application via ROB, the option for mandatory name checks to be performed by a person outside of the workplace, such as People and Culture or the ESRU.
The Applicant contended that this form of injunctive relief should be granted, although what precisely was sought, varied from what was in the Points of Claim and the written submissions and ultimately final addresses.
Essentially what was being sought that the Respondent be enjoined from implementing the former name check condition and relies upon what it says were similar orders in Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 and Bevege v Hizb ut*-Tahrir Australia* [2016] NSWCATAD 44. Those decisions involved entirely different circumstances to those present here, for example ordering the returning a person to a former position. In the latter case the Tribunal ordered that in future events an Islamic group should clearly display a sign indicating that segregated male and female seating arrangements “are not compulsory”, and that staff are all made aware of this fact.
The AD Act prohibits indirect discrimination. In this case, we see no real purpose, particularly when it seeks to enjoin a very substantial Government agency with a critical role in managing the health of the residents of New South Wales, to enjoin it from implementing the procedure it has in place across its organisation.
The Tribunal would take some considerable persuading to accept an invitation to enter into what are in effect management decisions for New South Wales Health as to how it manages procedures in a way that avoid indirect discrimination of transgender people. As we have said, the evidence of the Associate Director fortifies us in the view that change is on its way.

HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health District

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment

Source

REASONS FOR DECISION

What are the critical issues

What did the President’s Report identify as the complaint?

What relief is sought

Indirect Discrimination on transgender grounds

What was the Applicant’s name usage over time?

Who is NSW Health and what was his first employment with NSW Health

Is the Applicant unable to comply with the Former Name Check Condition

What case did the Respondent contend in its original submissions

Is a substantially higher proportion of others able to comply with the condition

Are the former names a sufficient indicator he formerly lived as a female?

Is the Former Name Check Condition unreasonable

What are the parties’ respective positions on unreasonableness of the condition

The critical evidence of the Associate Director, Human Capital Management

The Remedies Sought

What is the basis for the claim of non-economic loss

The claim for aggravated damages generally

Implication that the Applicant was not genuinely a transgender person

False assertions to the Ombudsman and Anti-Discrimination NSW

Alleging that the Applicant has been treated more favourably than others

Submissions that the Applicant engaged in misleading conduct

Injunctive relief

Should the Applicant get an Apology

Disposition in relation to the Applicant’s complaints of discrimination

Orders

Parties

Legislation Cited (14)

Cases Cited (30)