It can be difficult for employers to know where to find information on supporting trans employees in the workplace. Clare Gilroy-Scott and Becky Minear look at advice available and explain the associated legal issues.
LGBT equality charity Stonewall recently named the top employers for inclusivity in the workplace, including its first list of trans-inclusive employers.
But while 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 focused on trans employees.
Last month, Primark was told by an employment tribunal to change its policies after “shocking” discrimination against a transgender employee.
In August 2017, Acas published its own guide, Supporting trans employees in the workplace, highlighting the issues facing trans and intersex employees, offering advice to employers to promote better inclusion and understanding in the workplace.
However, confusion can arise from misunderstandings about terminology and consequent misuse of terms, which can lead to reduced management confidence when dealing with trans employees in the workplace.
“LGBTQIA” (lesbian, gay, bisexual, trans, queer, intersex and asexual) is a wide term encompassing sexual orientation, sexuality and gender identity, which are all separate issues.
We want to look specifically at those who are “trans”, meaning 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. (Research suggests that “intersex” is a matter of natural human development and therefore not technically an issue of gender identity).
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 can be 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, which includes “gender reassignment” as a characteristic protected from discrimination.
This legislation has been criticised as providing the bare minimum of protection, and its use of outdated terminology (“gender reassignment” and “transsexual” having associations with medical transitioning) has been highlighted as an issue for trans individuals.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.
While the current law requires some updating to align with modern terminology, employers participating in the Acas research took the view that all are protected by the Equality Act.
However, 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 faced by trans employees at work include a 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.
Acas’s report makes numerous suggestions to manage gender identity issues in the workplace at all stages of the employment relationship.
In order to support a trans employee, it’s crucial to agree an individual and flexible plan with them.
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.
Here are some specific steps employers can take to demonstrate best practice:
- In the recruitment process consider flexibility in terms of requirement for titles and genders on application forms. Ask for previous names sensitively.
- Provide high quality diversity and inclusion training to staff at all levels.
- Provide access to an Employee Assistance Programme.
- 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. These should 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 and make a plan with the employee as to how their information will be updated. Avoid non-consensual disclosure and only retain previous identity documents that are required (such as 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 – examples could be installing gender-neutral toilet facilities, offering gender-neutral uniforms, flexibility relating to staff photos in early transition.
- Review your anti-bullying and equal opportunities policies regularly to ensure they are fit for purpose and make it clear that any form of bullying will not be tolerated.