Stonewall, Britain’s leading charity for LGBT equality has named the top employers for inclusivity in the workplace. Whilst attitudes in some workplaces are changing, individuals regularly experience negative treatment and transphobia related to their gender identity and only 20% of Stonewall’s top 100 employers have policies focussed on trans employees.

In August 2017, ACAS published their research paper “Supporting trans employees in the workplace”, which highlights the issues facing trans and intersex employees, and provides useful guidance to employers to help promote better inclusion and understanding in the workplace.

Confusion arises from a misunderstanding about terminology and consequent misuse of terms, which can lead to reduced management confidence when dealing with trans employee employees in the workplace. “LGBTQIA” (lesbian, gay, bisexual, trans, queer, intersex and asexual) is a wide term encompassing sexual orientation, sexuality and gender identity – all separate issues. 

This article is about gender identity and specifically those who are “trans” i.e. those whose gender is not the same as the sex assigned at birth, and “intersex” which includes those who, at birth, are neither clearly male or female (although the research highlights that “intersex” is a matter of natural human development and therefore not technically an issue of gender identity).

Legal Protection

Current legal protection includes the Gender Recognition Act 2004 which enables individuals who have transitioned to obtain a Gender Recognition Certificate changing their legal gender. This is apparently a lengthy and bureaucratic process, with no allowance for those who are intersex – in law, gender is binary. There is also the Equality Act 2010 (“EA”) which includes “gender reassignment” as a characteristic protected from discrimination.

The EA has been criticised as providing the “bare minimum” of protection, its use of outdated terminology (“gender reassignment” and “transsexual” having associations with medical transitioning) being highlighted as an issue for trans individuals. It arguably covers only those who have transitioned, or are in the process of doing so, thereby excluding intersex and non-binary individuals (who do not identify with a particular gender) who may not transition at all, unless they are protected because they are “perceived” to have the protected characteristic of gender reassignment.

Whilst the current law requires some updating to align with modern terminology, employers participating in the ACAS research, who promote diversity and inclusion, act as if all are protected by the EA. Indeed, a failure to protect such employees from bullying and harassment in the workplace may lead to constructive unfair dismissal claims so it may be time for employers to look closely at their diversity and inclusion policies and practices, with support for trans employees in mind.

Issues

Issues faced by trans employees at work include: lack of understanding, prejudice, data security and confidentiality issues (including inadvertent “outing” when outdated records are retained unnecessarily), records and reference requirements in the recruitment process, access to facilities and dress codes. The report makes numerous suggestions to manage gender identity issues in the workplace at all stages of the employment relationship.

Key to supporting a trans employee is agreeing an individual and flexible plan with the employee. An employee-led plan should cover consideration of matters such as: who is told and under what circumstances, when any transition may occur, when records will be updated, how old records will be dealt with, absences from work and temporary changes to working arrangements.

So what specific steps can employers take to demonstrate best practice?

Practical Tips

In the recruitment process consider flexibility in terms of requirement for titles and genders on application forms, ask for previous names sensitively (the Civil Service application process is entirely name-blind).Provide high quality diversity and inclusion training to staff at all levels;Provide access to an Employee Assistance Programme;Be proactive every trans person will have a different experience, so address each situation individually;Have robust equal opportunities and specific gender identity policies, differentiated from sexuality/sexual orientation, which emphasise a supportive, flexible and tailored approach;Discuss whether the employee would like any temporary changes to working arrangements, such as a period away from client-facing roles. This should be led by the employee;Manage data carefully, make a plan with the employee to how their information will be updated, avoid non-consensual disclosure and only retain previous identity documents which are required (e.g. for pensions purposes). Provide reassurance about records - disclosure of the individual’s history should be controlled by that individual;Treat absence like any other authorised absence;Assess any practical barriers and minimise any feelings of isolation e.g. install gender-neutral toilet facilities, gender-neutral uniforms, flexibility relating to staff photos in early transition; andAlways keep reviewing your anti-bullying and equal opportunities policies to ensure they are fit for purpose and make it clear that any form of bullying will not be tolerated.


This article was written for Personnel Today with the assistance of Becky Minear, Trainee Solicitor