Transgender (trans) people often experience stigma and face unique challenges in the workplace. A Stonewall study found that 50% of trans people have hidden or disguised the fact that they are trans at work because they are afraid of discrimination. It is important to know the law around transgender rights and for employers to endeavour to make the workplace a more inclusive place for trans people.
Transgender Law & Rights
The Equality Act 2010 and the Gender Recognition Act 2004 set out minimum legal requirements in relation to protection of trans people.
Being trans is a protected characteristic; this means that trans people are protected against discrimination, harassment or victimisation and includes both binary and non-binary individuals. The Equality Act 2010 (EA 2010) states that a person is protected if they are “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.’ A person does not need to have taken any visible steps towards reassignment, nor is any medical intervention necessary.
In a workplace, discrimination could take the form of not allowing a trans person to use the bathroom of the gender that they identify with (direct discrimination), having a gendered uniform/dress code policy (indirect discrimination), being verbally abused due to transitioning (harassment) or being dismissed after complaints of harassment or discrimination (victimisation).
An employer may be liable for any discrimination which occurs during the course of employment as a result of gender reassignment, unless it has taken reasonable steps to prevent such conduct from occurring. Consequences of this include a compensation claim, including an injury to feelings award, as well as a declaration of the parties’ rights, which is a statement made by the court as to the parties’ rights, and/or a recommendation that the employer takes certain action to address the discrimination.
The Gender Recognition Act 2004 (GRA 2004) enables a trans adult (over 18) to apply for legal recognition of their acquired gender. The applicant must provide medical evidence of gender dysmorphia, have lived in their gender for two or more years and provide a statutory declaration that they intend to do so for the rest of their life. There is no requirement for applicant to have undergone gender reassignment surgery or hormone treatment. The legal recognition takes the form of a gender recognition certificate (GRC). This changes their legal gender and entitles the individual to a new birth certificate with their acquired gender.
Under section 22 of the GRA 2004, it is a strict liability criminal offence for an employer, prospective employer or employee to disclose a person’s protected information regarding their gender identity if they have applied for or obtained a GRC.
Supporting Transgender Employees in the Workplace
Employers can create policies and workplace cultures that support trans employees. Harvard Business Review identifies some key areas that can cultivate a more trans-inclusive workplace:
- Basic Signs of Trans Inclusivity
Bathrooms
Instituting gender-neutral bathrooms or encouraging trans employees to use bathrooms that align with their gender identity is one important way to signal that trans employees are valued. Diversity training can be used to educate other employees on the importance of being accepting and welcoming should they be in the bathroom with a trans co-worker.
Dress Codes
Employers can implement policies that allow individuals to dress in clothes which align with their gender. It can also be made explicit that all employees may select from a range of options, helping to destigmatise varying expressions of gender.
Pronouns
Employers can introduce gender neutral language in all written communications and documentation. Pronouns can also be added (optionally) to email signatures or name badges, for example. Being proactive will help to ensure that people are identified with the correct pronouns without having to request it themselves.
Policies
Employers can make their policies more inclusive, helping to clarify what support is available for trans employees.
Employers can ensure that their Equal Opportunities and/or Bullying & Harassment Policies cover gender identity and make it clear that any discriminatory or unfair treatment, harassment and/or bullying will not be tolerated and will be dealt with under the disciplinary procedure.
A Transitioning at Work Policy can offer guidance for trans employees who wish to transition at work. This can include further guidance for HR staff, action plans and practical steps to take – such as how to change email addresses for a trans staff member who has changed their name or update a workplace ID card.
Family Leave Policies, such as maternity, paternity, adoption, shared parental leave and special leave, can be expanded. For example, gendered language can be replaced with terms such as ‘partner’ instead of husband/wife or boyfriend/girlfriend so that LGBTQ+ people of all genders know that they can access the policies that are relevant to them.
- Effective Support for Gender Transitions
Trans individuals have the right to take time off work for appointments related to their transition. A person cannot be treated unfairly or be penalised for this time, and may be entitled to sick pay. Under the EA 2010, it is unlawful for an employer to treat someone who is transitioning less favourably than they would if their absence was the result of sickness or injury. They are also protected against less favourable treatment if their absence is for another reason e.g., to attend counselling. Employers can ask trans employees what they need during their transitions and how they would like the process handled. This ensures listening and collaboration and that people are not invertedly ‘outed’ without their permission. The Equality and Human Rights Condition Code also suggests that employers discuss with trans staff how much time they will need off and accommodate those needs in accordance with their normal practice.
Employers may find it helpful to look at guidance such as the Government Equality Office (GEO) Publication: Recruiting and retaining transgender staff: a guide for employers – GOV.UK (www.gov.uk)
Conclusion
Creating an inclusive workplace environment allows all staff to meet their full potential and ensure that they are treated as individuals. It is important to remember that the Equality Act 2010 offers protection to trans individuals against discrimination. Employers can take an active approach to ensuring that trans individuals feel included and valued at work.
At Gepp Solicitors we can advise on all aspects of Employment Law. For more information and guidance, please email deana@gepp.co.uk.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
