In the second article in her two-part series, Dawn Wyvern looks at practical ways employers, with the help of occupational health, can support transgender people in the workplace.
This is the second of two articles (with the first one published in January) considering issues relating to transgender issues in the workplace.
The transgender community face a range of challenges relating to both their private and work life. The first article covered issues relating to the process of transition. This article explores legal requirements and considers how an organisation can best support an employee during and after their transition to their preferred gender.
About the author
Dawn Wyvern is an occupational health nurse advisor and offshore medic
Occupational health advisers (OHAs) may be involved in supporting transgender staff, particularly during the period that they are receiving psychological, medical and surgical treatment. If the OHA is to give the appropriate advice to both the employer and managers a knowledge of the legal requirements associated with transgender issues is essential.
Transgender people are protected by two key pieces of UK legislation:
- The Equality Act 2010 which outlaws discrimination in both the workplace and in the wider environment on the grounds of gender reassignment (even though gender identity is not in itself a protected characteristic) (Gov UK, 2010).
- The Gender Recognition Act 2004 allows transgender people to obtain a Gender Recognition Certificate to legally change their gender (Gov UK, 2004).
Employers must support transgender employees and they should not discriminate against them because of their transgender identity.
The work undertaken to bring this legislation into place was driven by the transgender activist group ‘Press For Change’, with input and drive from Professor Stephen Whittle, a professor of law, and Christine Burns, a political activist and health adviser.
Press for Change lobbied and advised the British and European governments on key diversity issues relating to transgender and human rights, with the development of the Gender Recognition Act 2004, and the Sex Discrimination Act 1975, which has been superseded by the Equality Act 2010 (Press for Change, 2012).
There are clear requirements under this legislation to maintain confidentiality and ensure data protection with regards to employees’ trans status. This, and their transition history must not be disclosed without their express permission. Their transgender status should only be disclosed with their permission and provided there is good reason to do so.
“Outing” a person as transgender is classed as direct discrimination under the Equality Act 2010 and could result in criminal charges under the Gender Recognition Act 2004.
Disclosure of the fact that an employee has obtained a gender recognition certificate is also a criminal offence subject to legal prosecution (HM Courts and Tribunals Service, 2019; Gov UK, 2004).
There have been numerous instances where legal action in respect of discrimination has been brought by transgender workers and the court has found in their favour (Press for Change, 2012).
For example, the 1992 case of ‘P’ versus ‘S’ and Cornwall County Council, is described as a landmark case in the support of transgender people in the workplace.
‘P’ was a head teacher who considered herself to be female but who had been recorded as male at birth. P informed her manager of her wish to transition, and arranged to take sick leave to have the required surgical treatment.
Following this surgery, her employer would not permit her to return to work in her female role and three months later she was dismissed. The case was considered by the European Court of Justice who found this to be discriminatory and unlawful (European Court of Justice, 1994).
In another case, ‘A’ versus the West Yorkshire Police, ‘A’ was refused employment as they were transgender. The court, and then the court of appeal, found in ‘A’s favour paving the way for further cases for other transgender individuals, including, ‘M’ verses West Midlands Police (House of Lords, 2004; Press for Change, 2012).
The process of gender change
Transitioning, for many people, commences with an initial appointment with the person’s general practitioner, followed by referral to a gender identity clinic (GIC). The next step is surgery and recovery before emerging into the preferred gender.
This process takes a minimum of two-and-a-half years, but frequently exceeds four.
Several steps must be negotiated throughout the process of transition including administrative processes then surgical and medical interventions.
Administrative processes include legal processes to change their name by deed poll followed by other administrative changes to personal documents, such as bank accounts and passport.
Health interventions include referral for psychological support. Males who are transitioning to female may require electrolysis, facial surgery speech therapy to change their voice pitch, and may undergo vocal surgery to further facilitate this. Females who are transitioning to male may often require “top surgery” to develop a more masculine profile.
Furthermore, the person must also deal with family issues undertaking a “real life test” of living in the chosen gender and eventually moving to a “normal” life. It is very important to be cognisant that each transition is personal and unique (Anon 2020).
Support in the workplace
Managing the support in the workplace for transgender employees should begin at recruitment and consider flexibility in terms of any requirements for the inclusion of pronouns, titles and genders on application forms.
Asking for previous names should be done sensitively and only if there is a specific need to do so such as recruiting to a security sensitive role. Company policies should be robust and ensure that transgender employees are treated fairly and sensitively.
Employers should make provision for high-quality diversity and inclusion training to staff at all levels. Access to an Employee Assistance Programme may prove beneficial for all employees, and transgender employees may particularly appreciate the support that such programmes provide.
Every transgender person will have a different experience and it is important to address each situation individually and be as flexible as possible in providing support.
One way of providing this support is to have a robust equal opportunities and specific gender identity policies, differentiated from sexuality/sexual orientation. These policies should emphasise a supportive, flexible and tailored approach.
When supporting a person who is transitioning, it is important to discuss with them whether they would like any temporary changes to working arrangements, such as a period away from client-facing roles. These discussions should be led by the employee and subject to confidentiality requirements under the Equalities act 2010 (Gov UK, 2010).
Data should be managed carefully and a plan made with the employee as to how their information will be updated. Non-consensual disclosure should be avoided and only previous identity documents should be retained that are strictly necessary for purposes such as pensions. Any disclosure of the individual’s history should be controlled by them and they should be reassured about how information about them is managed and confidentiality assured.
There may be a need for them to take time away from work, and these absences should be treated like any other authorised absence.
An important element of supporting the worker through the transition process is to assess any barriers and take steps to minimise any feelings of isolation. Some examples could be offering gender-neutral uniforms and flexibility with regards to name badges and staff photos in the early stages of the transition process.
It would be prudent regularly to review policies to ensure they are fit for purpose. Of particular importance are those relating to employee dignity and inclusivity and equal opportunities. Organisational policies should make it clear that any form of bullying will not be tolerated (HR 24, 2020; Gilroy-Scott, 2018) A positive approach to transgender employees can be shown by ensuring that everyone is respectful and inclusive.
Education of both co-workers and the management team is important. Transgender employees need to know they will be treated with respect and that company policies will be upheld.
Reference to gender reassignment support should be incorporated within any company equality and diversity policies (TUC, 2016; Morton, 2015; Royal College of Nursing, 2020).
Understanding a ‘Memorandum of understanding’
When an employee is going through the process of transitioning, the organisation should be cognisant that, prior to visible transition, there are non-visible elements which take place over a period of a few months. It may be of benefit to draw up a memorandum of understanding (MU) that provides an outline of the transitioning process relating to the individual and the company.
This should be a collaborative initiative drafted by the manager and the individual together, highlighting key milestones in the transition process and include a proposed time frame for actions to be undertaken, providing a guide to help management and the individual cover all the required steps (NHS England, 2019; NHS 2020).
Elements incorporated within the MU are of particular importance once the visible stage of the transition has been reached. It should determine what will be communicated, by whom and when and how this will occur.
There will be absences in order to attend medical, surgical and other appointments including attendance at medical and GIC clinic appointments. The requirement of attendance at such clinics should be established and included within the MU. It is essential that policies and procedures are robust and in place to support transitioning.
Of particular importance are those policies covering bullying and harassment and dignity at work. Triggers for sickness absence may need to be adjusted.
It is important that the manager should listen empathetically then plan, and support the member of staff as they transition. This may include asking “out of the box” questions, brain-storming, and “playing devil’s advocate” in order to find solutions to the challenges which they may face. In some situations, the individual may need a short period away from work prior to them commencing in their new gender.
The MU should incorporate elements which will arise as visible elements of the transitioning process are reached. Communications with other work colleagues as the transition process progresses can be in the form of a “heads up” message with clear organisational support including management, peers, team members and other departments.
A proposed timescale and timeline for visible transition should be established; this will assist as the employee attends work in the preferred gender. It should highlight the timeline for the necessary time off from work prior to transition, indicating the dates when various changes will take effect.
These changes will include the person’s chosen name and pronoun, the date that uniform, and administrative changes will commence. It is important to note the timing when the use of preferred welfare facilities will commence.
There should be some flexibility with regards to this likely timescale in line with changes to personal situations and circumstances and they must be aligned to the individual’s private life and various medical requirements.
It is crucial to be aware that this is their transition and can be a very stressful time. Support from their employer can reduce some of the associated challenges.
Pointers when supporting transgender individuals at work
The process of transitioning will be stressful for the employee and they will face a number of challenging and the OHA must be cognisant of this and remain sensitive to the feelings of the person they are supporting. It is also valuable here to be clear about the distinctions between the words ‘transgender’ and ‘transsexual’. Transgender is an umbrella term for people who identify differently from their biological sex. Someone who is transsexual has physically transitioned. These guidelines may be of assistance.
- Don’t ask about personal or intimate questions. This is unless this is relevant to your medical role, or if you are invited to ask, but remember to keep the information confidential.
- Don’t assume where someone is on their personal trans-spectrum. This is a fluid process and may change in any direction.
- Don’t assume anyone’s sexual orientation.
- Don’t speculate about anyone’s gender or physical sex.
- Don’t use pronouns without asking their preference.
- Don’t negatively comment on their appearance or how “convincing” they are.
- Don’t allow discrimination in any form. Discrimination is outlined within the Gender Recognition Act 2004 and includes protection for both direct and indirect discrimination. It is important to have an understanding of some terms which relate to discrimination.
Direct discrimination occurs as a result of unnecessarily requiring someone not to be transsexual. Indirect discrimination occurs if transsexual people are particularly disadvantaged by an organisational policy, provision or criteria.
Discrimination can occur by perception or by association. Discrimination by perception is defined as where an assumption is made that someone is transsexual, and they are discriminated against because of it, but they are not transsexual.
Discrimination by association has occurred if a person is discriminated against because although they are not themselves transsexual they mix with, or have an association with, transsexual people.
Harassment has occurred if a person(s) act in ways that violate the dignity of another person. This might occur if there is an environment which is intimidating, hostile, degrading, humiliating or offensive environment for that person as a result of them being transsexual.
It is unlawful to discriminate against someone because they have used the provisions of the legislation or have helped someone else to do so, the legal term for this is victimisation (Gov UK, 2014; HM Courts and Tribunals Service, 2019). These pointers help treat transgender people with respect although, in fact, can be applied as best practice for how you treat any employee.
- Do include transgender people in work-based activities.
- Do offer support when they need it.
- Do educate any co-workers or others who ridicule or use derogatory terms.
- Be available to listen when required.
- Do remember that transgender people are people with feelings and opinions.
- Do remember that transgender people have families.
- Do remember that transitioning is a dynamic process.
- Do remember that transgender people, just like anybody else, may have illnesses at times and not all illnesses are related to transitioning; not everything health-wise is related to transgender. (Powers, 2019; McNeil et al, 2012; Mermaids, 2020; HR-24, 2020).
Toilets and changing rooms
This is an area that often arises in many workplaces and can be quite an emotional subject for all concerned. Managers must ensure that transgender employees are able to use facilities appropriate to their expressed gender identity without fear of harassment.
It may be appropriate to set a date when this will happen, such as the social transition date, and ensure it is communicated to ensure colleagues are not surprised.
People should not be made to use unisex disabled toilets, unless they choose to do so. This may be their preference as a temporary measure during the early stages of their transition period (House of Commons Women and Equalities Committee, 2015).
There are both moral and legal reasons for employers to ensure that every member of their workforce is treated with respect, irrespective of their race, religion, gender or sexuality.
Not only must the employer comply with legislation related to employment and diversity such as the Equality Act 2010, they also have a duty of care encompassed within the Health and Safety at Work Act (1974).
In order to discharge their duties, managers or the trans person may ask for OH advice and support in relation to the process of transitioning and it is important that the OH professional remains cognisant of the impact of this process on the individual and how the manager can ensure a supportive workplace and best assist their team member through the process.
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