Transgender Rights in the Workplace

As part of creating an inclusive workplace, employers should consider having in place clear steps and guidance as to how an employee can expect to be supported through the transitioning process.

We are starting to see cases in the Employment Tribunals related to trans rights including an appellate decision that “gender critical beliefs” are protected as a philosophical belief. The key consideration is to ensure that those with different beliefs are treated with respect while maintaining the right to freedom of expression. In the workplace, holding of a belief is not the issue, it is how a belief is manifested that is potentially contentious and if that results in discrimination, harassment, or victimisation an employer will need to act.

The Law

Definition of gender reassignment

Under the Equality Act 2010, a person has the protected characteristic of gender reassignment if that person is: “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 to be protected. A person can change gender without any medical intervention and medical processes are not essential to transitioning. There is no requirement to have a Gender Recognition Certificate (GRC) in order to be protected and it is unlawful for an employer to ask for one.

Equality Act protection

It is unlawful for an employer to discriminate directly or indirectly, harass or victimise an employee because of gender reassignment which is one of the nine protected characteristics under the Equality Act 2010. However, gender reassignment discrimination may be permitted in certain very limited circumstances where there is an occupational requirement not to be transgender.

The Equality Act does not only protect those who are binary. In 2020, an employment tribunal held that the Equality Act protected a person who identified as gender fluid/non-binary.

The employer will be liable for any discrimination unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be liable. A successful claim may result in compensation including for injury to feelings as well as a declaration of the parties’ rights and/or a recommendation.

While being trans is not a disability, there may be instances where an individual has a related condition, for example gender dysphoria, which means they may satisfy the definition of disability under the Equality Act.

Gender Recognition Act 2004

A trans person who is at least 18 years old can apply for legal recognition of their acquired gender through the issue of a GRC. This changes their legal gender and entitles the individual to a new birth certificate with their acquired gender. However, a GRC does not have retrospective effect and will not cover things done or events that took place before it was issued.

Under the Act 2004, it is a strict liability criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity, to disclose that information to any other person. This means that there is no requirement to be at fault in order to be liable.

Data protection issues

Employers should also keep in mind that gender reassignment and any information relating to an individual’s gender history will constitute special category data under data protection legislation, which can only be processed for certain specified reasons.

Practical Considerations and Best Practice

Set out below are some issues that commonly arise in the workplace. Employers may also find it helpful to look at guidance such as the Government Equality Office (GEO) publication Recruiting and retaining transgender staff: a guide for employers.

• Absence and time off: There is specific protection provided for under the Equality Act to ensure that someone is not treated less favourably if they are absent for reasons relating to gender reassignment, than they would if they had been absent due to sickness or injury. They are also protected against less favourable treatment if their absence is for some other reason e.g. to attend counselling. The Equality and Human Rights Commission (EHRC) Code suggests that it is good practice for employers to discuss with trans staff how much time they will need off and accommodate those needs in accordance with their normal practice.
• Dress code/uniform: A person living in their affirmed gender should be allowed to wear the uniform or abide by the dress code of the gender to which they are transitioning. Name badges or any other reference to the individual should reflect the gender to which they are transitioning.
• Equality monitoring: If an employer uses the equality monitoring forms and includes questions relating to gender identity, they should ensure that the form is anonymous and includes the option “prefer not to say”.
• Line management and planning for transition: Where a line manager is informed by an employee that they are transitioning or intending to transition confidentiality will be paramount. They should have a detailed discussion about what support they might need, how they would like to be addressed, who should be told, when, any formal announcements including terminology, timescales and facilities.
• Policies: Employers should ensure that their Equal Opportunities policy expressly covers gender identity and make it very clear that any discriminatory or unfair treatment and/or harassment and/or bullying will not be tolerated and will be dealt with under the disciplinary procedure.
• Pronouns: Employers should consider introducing gender neutral language in all written communications and documentation which is more inclusive. They may also wish to consider the option for people to have their pronouns added to their email signature. However, this should not be compulsory as it may indirectly discriminate against those with gender critical views.
• Recruitment: A person should never be denied a job because they are trans apart from in the very rare circumstances where an occupational requirement applies. A person should not be asked about their gender history or trans status as part of the interview or selection process. Employers should be flexible about what type of ID they ask for. Be aware of data protection considerations and that it is a criminal offence to disclose information about a person’s gender identity – see above.
• Terminology: Employers should consider familiarising themselves with terminology and some of the terms used in the briefing note are set out at the end. There is also a Glossary on p24 of the GEO guide referred to above.
• Training: HR and line managers should be trained in how best to support trans employees, or employees who are transitioning or considering transitioning. Common areas of focus include dress codes/uniform, time off, terminology and toilets and changing facilities as well as handling inappropriate behaviour by other staff.
• Toilets, washing and changing facilities: The GEO guidance states that a trans person should be free to select the facilities appropriate to the gender in which they present. It also notes that where employers already offer gender neutral toilets and changing facilities, the risk of creating a barrier for trans people is alleviated. There are also requirements under Health and Safety legislation to provide enough toilets and wash basins for those expected to use them. Where possible, employers should provide separate facilities for men and women, and where that is not possible, rooms with lockable doors which means that gender neutral toilets are permissible. Note that a requirement for trans employees to use the disabled toilets carries risks as it suggests that they have some form of impairment and may amount to direct discrimination and is not advisable.

Terminology

Employers to understand and familiarise themselves with terminology:

• Affirmed gender: the gender that a trans person now identifies as and affirms. This is also referred to as their acquired gender under the GRA 2004 but affirmed is now the preferred expression.
• Assigned gender: the gender assigned at birth.
• Cisgender or cis: someone whose gender is the same as the sex they were assigned at birth.
• Gender fluid: a person whose gender identity is not fixed and may change as often as day-to-day.
• Misgendering: referring to someone by the gender which they no longer identify with e.g. referring to a trans woman as “he”.
• Non-binary: any person whose gender identity does not sit with “man” or “woman”.
• Pronouns: words used to refer to people’s gender – e.g. “he” or “she”. Some people may prefer to be referred to in gender neutral language e.g. “they/their”.
• Trans or transgender: an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.
• Transitioning: the steps a trans person may take to live in the gender with which they identify. Each person’s transition will involve different things.