Transgender employees: how to avoid discrimination

Caitlyn Jenner
The recent publicity surrounding Caitlyn Jenner has raised the profile of transgender issues and how employers must take them seriously. Photo: Foto/Rex Shutterstock

Recent employment law cases highlight the risk of poor policies and practices relating to transgender employees. Meanwhile, celebrities such as retired US athlete and reality TV star Caitlyn Jenner are raising public awareness of the issue. Zee Hussain, from law firm Colemans-ctts, advises HR on what action it should take.

News in relation to the transgender community, most notably Caitlyn Jenner’s journey, has been hitting the headlines again recently with more people challenging the binary and often stereotypical views of gender. This has encouraged discussion and acceptance of transsexual individuals.

Whilst transgender and transsexual are terms that are seemingly used interchangeably, the reality is that the transgender community is broader than people who are changing their biological gender.

The gender transition period is not as simple as waking up one day and deciding to have gender reassignment surgery. The process takes some time and involves extensive counselling, and spending time living as a person’s target gender to help them adjust to their chosen gender identity.

However, transsexual individuals often face hostility, abuse and ridicule from the outset making it more difficult to integrate into their chosen identity.

What does the law say?

There have been some high profile cases in the news recently, including the case of Leyth Jamal who made a claim against Saks Fifth Avenue stating that she was told to use the men’s bathroom and dress in a more masculine style, and was eventually dismissed for being transgender.

The Equality Act 2010 protects people from discrimination if they are proposing to undergo, are undergoing or have undergone a process or part of a process for the purpose of reassigning their sex by changing physiological or other attributes of gender.

Employers must be aware that they are responsible for their employees’ conduct and, therefore, they are responsible for ensuring that transgender employees are not harassed or treated less favourably than people who identify with the gender they were assigned at birth.

So, as an employer, how do you support employees who are transsexual in the workplace?

Foster a supportive environment

One of the key factors in retaining talent, regardless of background, is making sure that the working environment is inclusive and supportive. There are various ways that this can be achieved, such as:

  • Having an equal opportunities policy that is enforced, eg make sure that all individuals regardless of gender have access to the same promotional opportunities and training.
  • Providing good quality diversity training, which highlights LGBT issues.
  • Ensuring senior managers champion equality, as research shows that the workforce are more likely to engage in an inclusive way if senior management supports transgender employees.
  • If your organisation is large enough, developing LGBT networks can be a useful way of giving transsexual employees a voice and connections.
  • If you have access to an employee assistance programme, you can encourage an employee to access the service as a source of support and advice on a broad range of issues.

Talk to the individual

If an employee is undergoing the process of transition, it is important to discuss how they want the matter to be handled. The process is personal for each employee and it is important to respect individual boundaries and wishes. However, you will need to discuss:

  • When time off work is needed for counselling or surgery. Section 16 of the Equality Act 2010 specifically states that time off related to gender reassignment (not just surgery) is protected. You will also need to consider whether this time would be paid or unpaid and ensure that this leave is treated separately to ordinary sick leave for the purposes of disciplinary policies, or selection for promotion or redundancy.
  • Establish how the transgender employee would like to be addressed, by name and salutation, and when they would like to change this. Ensure business stationary reflects this.
  • Establish how and when the transgender employee wants to “come out” to their colleagues and how this is to be managed. Some people would prefer to discuss this in a team meeting and are happy to answer questions, others may prefer you to address this for them while they are on leave.
  • If a new member of staff has already transitioned and is living as their target gender, you may become aware of their transgender history for the purposes of background checks and have to discuss this. Ensure that this information is kept strictly confidential.

How you handle the situation is absolutely crucial, and you should be sensitive to the changing needs of an employee during the process of transition. Fortunately, there are online resources that can answer questions about the process, but an employee should always feel able to express their needs to you.

Stamp out discrimination

As gender reassignment is still a rare occurrence, transsexual employees may quickly find themselves the subject of gossip and jokes. This must be addressed early on; any harassment from a colleague should be nipped in the bud, and appropriate action taken.

One situation reported involved a group of women in the workplace that vetoed a transgender woman from using the women’s toilets. The individual concerned was forced to use the disabled toilets as she had been made to feel uncomfortable. This should not be the case, and an employer need not wait for an employee to complain to take action.

You should also take into account that policies and practices can indirectly discriminate against a transgender individual. For example, if time off for surgery to reassign gender has been treated as sickness then any policy that uses sickness as a benchmark, such as access to bonuses or redundancy selection criteria, needs to be amended accordingly.

In summary

An employer should always seek to retain the best staff regardless of their gender, sexual orientation, race or religion. Ensuring you have an inclusive and diverse workforce will enable you to attract and retain the best talent. Plus, authenticity in business is a huge factor in winning and retaining clients, and the best employers will always encourage employees to be their authentic selves.

Zee Hussain

About Zee Hussain

Zee Hussain is an employment partner at Simpson Millar LLP.
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