Gender recognition: Period of transition

Social attitudes have changed considerably since the early 1990s, when transsexual people first started to campaign for their rights to ‘respect and equality’.

In 1999, transsexual people were afforded workplace protection through the Sex Discrimination (Gender Reassignment) Regulations, and in the same year, the Court of Appeal acknowledged that transsexualism was an illness and should be afforded treatment under the NHS, but many ‘trans people’ (as the government now terms them) continue to experience problems in their employment.

It is hoped that the Gender Recognition Act (GRA) (see box, top right), which came in to force on 4 April 2004, will further change the attitudes of employers and co-workers.

The Women and Equality Unit of the DTI have produced new guidelines for employers, which address many of the legal questions,1 but OH is often at the coal face of addressing the day-to-day health issues that trans people have to deal with in the workplace.

There is still a common misconception that with a transgender procedure, ‘Joe’ goes into hospital and, a week later, comes out as ‘Joanne’.

Most healthcare staff will know this is not true, but they are often unaware of the real complexities of hormonal and surgical therapies, and the time scales involved. It is common within the NHS system for the period of someone commencing living in their new gender role to completion of all surgeries to be up to six or seven years, and in the case of [female to male] trans men, where surgery to create a penis is multi-staged, that may extend to many more years.

A job is important for us all, but for trans people it is even more important. It often resolves the isolation that comes with losing family and friends, and is the source of financing non-NHS provided treatments, such as electrolysis to clear beard growth. And it has an even more important value, in that surgery will not be given the go-ahead unless the patient can show they have socially and mentally adjusted to their new gender role by working or being a full-time student.

There are three situations in which OH is likely to see the specific problems and issues surrounding trans people. The first is when a trans person is appointed, subject to a medical for fitness. The second is when a current employee announces their intention to undergo gender reassignment, and to start working in their new gender role, and the third is when a trans employee is undergoing medical treatment and consequently needs time away from the workplace to recover from major surgical procedures, or needs to move tasks to accommodate the consequences of those procedures.

All of these situations will be impacted upon by the provisions of section 22 of the Gender Recognition Act , which clearly states that trans people must be afforded high levels of privacy by employers and healthcare staff.

With appointments subject to a medical, these are often paper-based examinations, unless a specific issue arises. Many trans people, for fear of discrimination, will not reveal that they have a transsexual history or that they are still undergoing treatment.

The GRA, though affording maximum privacy, does not afford a right to secrecy for trans people, so if a medical requires details of current medications or recent surgical procedures then, to ensure their job security, trans people must disclose information about their hormone therapies and gender reassignment surgeries. Most healthcare professionals would then put two and two together and come up with ‘transsexual’. However, this information should not impact on a trans person’s prospective employment, because if they are fit to do the job, they are fully protected from discrimination on the basis of their transsexuality.

OH practitioners need to be aware that they may not know if the person has yet obtained legal gender recognition, but good practice would be to assume the person has obtained it and they come under the protection of the GRA (a trans person is not obliged to tell you whether they have gained it).

The Data Protection Act means that information should only be retained while it is relevant, so once a decision has been made as to whether a person is fit or not, the relevant parts of the records should be destroyed. Even putting them in a secure file is insufficient, because if the file is accessed in future by someone else, you could still face conviction.

When an existing employee announces their intention to change gender roles, OH is often involved to consider the impact on the workplace. The transsexual person will not be able to obtain gender recognition until they have lived in their new gender for at least two years, so, initially, the GRA protection is not in place. But it would be safer to assume that it is going to happen in the future, and records developed now should be written in such a way so as to ensure future privacy protection.

Finally, and one of the most complex aspects of the OH responsibilities is when a trans person starts the long road through the various surgical procedures.

This is treatment for an illness, and so normal sickness procedures come into action. However, many trans people may well not have told their employers or co-workers and will often approach OH because they need advice on how to manage their sickness periods without disclosing their medical history to all and sundry.

Sometimes healthcare professionals recognise these difficulties and tell ‘white lies’ – for example, a sicknote may say ‘hysterectomy’ when a male to female trans person is actually undergoing penectomy (removal of the penis) and vaginoplasty (formation of a vagina). But not all will do that, and in cases where there will be a lengthy programme of surgery, such as phalloplasty (construction of a penis), which often requires four to six operations, the story begins to lose its credibility.

Time away from work will vary with the type of job and with the particular procedure. For example, the phalloplasty surgeries will vary in requirements for one to eight weeks away from the workplace, but there will be a period of nine to 15 months between each operation. As in any other surgical procedures, there may be complications and these times may be extended.

The new legal requirements mean that medical providers will have to be very careful about what they write on sicknotes, as they must ensure non-disclosure, and OH staff will have to be very careful when managing the complex issues that arise out of repeated absences from the workplace. Policies and strategies should be addressed now rather than leaving it to the point where, in the future, a trans person feels let down and pursues the matter legally.

In all of the above scenarios, trans people can be approached and asked to approve further disclosure to facilitate problem solving, but they have no obligation to agree to that, and many will insist that, as this is not a life threatening medical situation, they wish to retain their privacy.

OH records could turn out to be a minefield in the future for employers with trans employees. Any loose ends left in the files could be the basis of an offence every time a new person is employed in an OH department. The Freedom of Information and Data Protection Acts have put the onus on all employers and subcontractors, such as OH providers, to audit their records. The Gender Recognition Act is now a new reason to do so.

Stephen Whittle OBE, PhD is Reader in Law at Manchester Metropolitan University, and vice-president of Press for Change, the UK’s campaign group for transsexual and transgender people

1. Women and Equality Unit, DTI, Gender Reassignment: A Guide for Employers, Jan 2005

Gender Recognition Act 2004

The Gender Recognition Act 2004 enables trans people to apply for ‘gender recognition’, and those born in the UK can obtain a new birth certificate. To qualify, a trans person has to show that:

  • they have been diagnosed as having gender dysphoria, or
  • they have had gender reassignment surgery, and
  • they have lived in their acquired gender role for two years, and
  • they intend to do so permanently for the remainder of their life.

Gender recognition will mean that trans people must be treated as of their new sex for all legal purposes, including in the workplace.

Section 22 of the Gender Recognition Act 2004

Section 22 of the Gender Recognition Act makes it a crime, with a fine of up to £5,000 on conviction, for any individual who has obtained the information in an official capacity to disclose that a person has a gender recognition certificate (GRC).

This includes employers or prospective employers, or a person employed by such an employer or prospective employer. It is a strict liability offence so there is no room for pleading ‘reasonableness’ as a defence.

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