A recent decision of the NSW Civil and Administrative Tribunal raises an important question for child safeguarding and the future operation of the Anti-Discrimination Act 1977 (NSW): how should anti-discrimination protections interact with reasonable identity and background checks designed to protect children?
The question arises from HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health District [2026] NSWCATAD 278, decided on 16 September 2026. The Tribunal upheld a complaint of indirect transgender discrimination and ordered NSW Health to pay $35,000 in compensation.
The case does not make Working with Children Checks or National Police Checks unlawful. Nor did the Tribunal find that NSW Health had no legitimate reason to undertake identity or background screening.
The issue was more specific: whether requiring an existing employee to disclose former names to people involved in workplace recruitment, after those names had already been provided and checked, was a reasonable way of achieving the stated purpose.
What happened in HGY?
The applicant — a female who began living as a man in 2012, anonymised as HGY and described by the Tribunal as a transgender man — had worked in the NSW Health Service since 2020. During the original recruitment process, former names were provided in connection with a Working with Children Check and National Police Check. Those checks were completed.
In 2023, the applicant applied for another position within NSW Health, working with children under ten who had displayed problematic or harmful sexual behaviours.
During that internal recruitment process, a support services officer contacted the applicant to confirm the former names. The applicant had not been told that people in the workplace would be given access to those names. The Tribunal accepted that the names were likely to identify the applicant as transgender and that disclosure caused significant distress and fear of being outed.
The relevant requirement was described as the Former Name Check Condition.
The complaint was brought under Part 3A of the Anti-Discrimination Act, which prohibits discrimination on transgender grounds.
For indirect discrimination under s 38B(1)(b), the Tribunal identified four elements:
- the person is required to comply with a requirement or condition;
- the person is not able to comply;
- a substantially higher proportion of people who are not transgender can comply; and
- the requirement or condition is not reasonable in the circumstances.
All four elements were found to be established.
The meaning of “unable to comply” matters
This is an important part of the decision.
The Tribunal did not find that the applicant was literally incapable of saying the former names.
Rather, it accepted that for a substantial proportion of transgender employees, disclosure of former names could carry a significant risk of being identified as transgender, together with fear and distress associated with that disclosure. The Tribunal therefore found that a substantial proportion of transgender employees would be unable to comply with the requirement in the statutory sense, whereas most non-transgender employees would have little difficulty doing so.
That finding turns on the cost of compliance, not impossibility. That is what brings a facially neutral screening requirement within the indirect discrimination provisions of Part 3A.
The requirement applied to employees generally. The Tribunal’s finding was that its impact was materially different for transgender employees.
The safeguarding purpose was not rejected
NSW Health argued that identity and former-name checks served legitimate purposes in recruitment and risk management.
It relied on the importance of maintaining accurate employment records, identifying previous employment and misconduct, and ensuring that people working with vulnerable patients and children were appropriately screened.
NSW Health also put evidence before the Tribunal concerning previous local incidents, the possibility of perpetrators using different names or aliases to avoid detection, evidence concerning name changes considered by the Royal Commission into Institutional Responses to Child Sexual Abuse, and the importance of identity, Working with Children and police checks for people working with children.
The Tribunal did not find that these safeguarding concerns were illegitimate.
Indeed, the Tribunal expressly accepted that the purpose of the Service Check was to identify serious misconduct and manage risks to patients, workers and others. It said that purpose was not objectionable in itself.
The problem was the particular implementation.
The applicant had already disclosed the former names when first employed. The Tribunal found that the names had already been checked for the relevant purposes. The issue was the subsequent requirement that an existing employee disclose those names again to job convenors or job owners in the workplace.
The Tribunal considered that the same objective could have been achieved through a centralised People and Culture or screening function, rather than exposing the former names to people in the applicant’s immediate workplace.
The Tribunal therefore found the particular requirement unreasonable. This is the central distinction:
The Tribunal did not say that safeguarding checks were illegitimate. It found that the way this particular former-name check was implemented was discriminatory.
A question about the structure of the Act
That distinction leads to a broader legislative question.
The Anti-Discrimination Act contains specific provisions dealing with exceptions and qualifications to its discrimination protections. In Part 3, which deals with discrimination on grounds including sex, s 31 contains genuine occupational qualification provisions.
Part 3A separately establishes protection against discrimination on transgender grounds. It contains specific provisions dealing with matters including sport and superannuation.
There is no equivalent express child-safeguarding exception in Part 3A dealing with identity verification, former-name checks or background screening.
That matters because the HGY decision demonstrates that a facially neutral requirement concerning former names can engage the indirect discrimination provisions where the Tribunal considers that a substantially higher proportion of non-transgender people can comply and the requirement is not reasonable.
The question for law reform is therefore not whether transgender protections should simply disappear in safeguarding contexts.
It is whether the Act should expressly recognise circumstances in which information about former names or identity is reasonably necessary and proportionate to protecting children or other vulnerable people.
Not every organisation is NSW Health
This is particularly important when considering what happened in HGY.
NSW Health is a very large organisation with centralised People and Culture and specialist screening functions. The Tribunal’s proposed alternative was for the relevant check to be handled away from the applicant’s immediate workplace.
Not every organisation operates that way.
A small school, refuge, counselling service or community organisation may not have a separate screening department. In some organisations, the person responsible for recruitment may also be responsible for safeguarding.
“Give it to HR” is therefore not a universal solution.
This case raises a legitimate policy question about whether the legislation gives sufficient certainty to organisations that must comply with both anti-discrimination obligations and their responsibilities to protect children.
Privacy and safeguarding are not mutually exclusive
The answer should not be that anti-discrimination law is ignored whenever an organisation invokes safeguarding.
Nor should the answer be that organisations are discouraged from asking questions that are reasonably necessary to protect children.
The two interests can operate together.
Workplace privacy does not necessarily mean that information about a person’s former name is irrelevant to safeguarding. The Tribunal required that such information be handled carefully; it did not hold that former names are irrelevant to screening.
The question for Parliament is whether the law provides enough certainty about how that information can lawfully be collected, checked and used.
What could a safeguarding provision look like?
One option for consideration would be an express child-safeguarding exception within Part 3A.
Such a provision could protect conduct undertaken in good faith for the purpose of:
- verifying a person’s identity or previous names;
- matching previous names or aliases to employment or screening records;
- checking criminal, disciplinary or professional history;
- undertaking Working with Children Checks or other legally required screening; and
- assessing whether a person is suitable to work with children or other vulnerable people.
The protection should not be unlimited.
A safeguarding exception could require the information sought to be reasonably necessary and proportionate to the safeguarding purpose, and could require that sensitive information be collected, used and disclosed only to people who genuinely need access to it.
It would not license curiosity, unnecessary disclosure or workplace gossip about a person’s former name.
Nor would it automatically determine the outcome of a future discrimination case on different facts. If a central screening function could reasonably conduct the check without unnecessary disclosure, the reasoning in HGY could still apply.
The purpose of an amendment would be narrower: to provide legal certainty that reasonable and proportionate safeguarding checks are not themselves discriminatory merely because they involve information about a person’s former name or identity.
What the case exposes
The Tribunal applied the law before it. It found indirect discrimination because the applicant faced a burden that a substantially higher proportion of non-transgender employees could avoid, and because this implementation of the check was not reasonable. It did not find that former names are irrelevant to screening, or that child-safeguarding concerns were illegitimate.
The case exposes a gap in the legislation. Part 3A contains specific exceptions, including for sport and superannuation, but no express child-safeguarding exception covering reasonable identity verification, record matching or background screening.
Women Speak Australia considers that this warrants legislative consideration. Any safeguarding provision should not create a general exemption from transgender discrimination protections. It should give certainty for conduct undertaken in good faith where information about a person’s former name or identity is reasonably necessary and proportionate to protecting children or other vulnerable people, and should require that such information be handled only as needed — and, where practicable, through a screening function rather than disclosed to colleagues.
The question raised by HGY is ultimately a legislative one: how should NSW law protect both against discrimination and the reasonable screening practices necessary to protect children?