Despite new guidance on recruiting and retaining transgender staff, employers remain confused about the law and good practice. Virginia Matthews reports on moves by campaigners and employers to boost transgender equality.
In January 2016, the Government’s Women and Equalities Committee upbraided the NHS for its failure to comply with the law when it comes to catering for the needs of transgender patients.
Calling for “outdated and misleading” gender recognition and equality legislation to be reworked, the committee also took swipes at the criminal justice system and education providers for their apparent inability to tackle transphobia head-on.
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Despite the committee’s stinging criticisms, this has been described as a “tipping point” for trans awareness, with the airtime devoted to everything from the recently released, male-to-female film The Danish Girl, to an emerging female-to-male storyline on television soap EastEnders.
Yet the notion that society – and employers – have done any more than scratch the surface of a highly complex issue is wrong-headed, says Bernard Reed, trustee of the charity the Gender Identity Research and Education Society (GIRES), which offers virtual and face-to-face training sessions for employers across all sectors.
“To describe 2015 as a tipping point is a dangerous fallacy and, in my view, you can’t take your foot off the accelerator for a moment when it comes to pursuing the trans agenda. The latest parliamentary report just published clearly states how much major work still has to be done.
“Despite many years of solid work on race, disability, sex, sexual orientation and other characteristics protected in law, it’s not true to say that you have largely finished the job there either and to think otherwise is misguided and complacent.”
Trans people are protected by two key pieces of legislation: the Gender Recognition Act (GRA) 2004, which allows people to legally change their gender and acquire a new birth certificate; and the 2010 Equality Act 2010, which includes transgender as a “protected characteristic”.
The principles of both the Human Rights Act 1998 and the 1998 Data Protection Act are also relevant when an employee embarks on a transitioning process.
Yet for the Women and Equalities Committee, the GRA’s “medicalised approach” runs contrary to the “dignity and personal autonomy of applicants”, while the Equality Act, it says, needs to be reworded to include the more inclusive term “gender identity”.
It argues that the Act’s use of the term “gender reassignment” excludes wider members of the trans community, while “transsexual”, with its implications of sexual orientation, brings an unnecessary layer of complication into the mix.
In legal terms, the situation is clear. Gender reassignment is a personal process, not a medical one, and an employee does not need to have either undergone surgery or even be having hormone treatment in order to be classed and protected as transgender.
By living openly in their acquired gender, a transgender person has already made a fundamental social transition – although this can also be reversed without any loss of legal protection – and employers are obliged legally to acknowledge this.
Whether it is recognising the right of a transgender member of staff to use the toilets and changing facilities that reflect their true gender – invariably a thorny issue, says Reed – or scrupulously adhering to confidentiality requests and updating staff records, the onus is on the employer.
Yet despite the publication last year of two lengthy pieces of detailed guidance for employers – the “Transgender Policy Guide for Employers”, published by GIRES in March, and a government guide to “Recruiting and Retaining Transgender Staff”, produced in November – confusion persists, says Paul Deemer, head of equality, diversity and human rights at NHS Employers.
“Although trans has received a lot of publicity recently, it’s both poorly understood and highly complex and can manifest itself in many different ways depending on the individual concerned.”
Deemer believes that for customer-facing organisations, transphobia among members of the public can be a particularly difficult issue.
“When it comes to a Saturday night in casualty and the potential for abuse from the public, you have to offer strong leadership and possibly even more visible protection to trans staff than you would if it was a case of racism or disability abuse. We have to accept that, in 2016, there will still be some people who have never come across a transgender person – and the same cannot be said of other protected characteristics – yet it remains the role of the employer to promote conversations about the difficult issues and to offer training and awareness-raising.”
Although LGBT is a useful catch-all term for staff networks, the “T” in “LGBT” is about gender identity and not sexual orientation, while trans itself is an umbrella term representing a highly diverse section of the UK population.
It includes those who identify as agender, androgynous, bi-gender, gender-neutral, gender-fluid, non-binary and pangender, as well as transgender, and it is thought to account for 1% of us in total.
For RBS, which was embroiled in negative headlines last May when a transgender woman’s request to be referred to as “Ms” was denied as a result of what it termed “human error”, it all comes down to respect.
“Being an inclusive bank for our own people and for customers means having the policies, procedures and processes that you need, and while it’s true that the ‘T’ in LGBT really came to the fore last year, we had already been working on this issue for at least 12-18 months,” says head of inclusion Marjorie Strachan.
“We have had to make some very brass-tack changes, including introducing the title ‘Mx’ to our systems as a non-binary alternative, and have also done a lot of work on how a trans customer is greeted when he or she comes into the branch; as well as the dangers of making assumptions about gender from the way customers speak,” Strachan says.
Although the transgender community already has a lengthy list of non-binary pronouns including “ve”, “xe” and “per” (short for person) to choose from, Strachan believes that for most large organisations and their overburdened IT systems, it’s more a case of keeping it simple.
“Transgender is not a straightforward issue by any means, but it doesn’t help to overcomplicate it,” she says. “By adopting a neutral language-stance policy at the top and ensuring that this reaches all staff in all branches, we can hopefully make things easier for everyone.”
Unconscious bias training is offered to all customer-facing bank employees, and, as of last year, the annual staff opinion survey asks whether peoples’ gender identification matches their sex at birth.
“Just shy of 400 people, or 1%, of our population answered ‘no’ to that question, and, to be honest, the fact that it was quite a sizeable number was a surprise,” says Strachan.
According to the organisation Inclusive Employers, firms that fall foul of equality law surrounding transitioning at work, for example, often do so through ignorance rather than malice or hostility.
But if many of today’s employers may be bewildered by the implications of terms such as “pangender” or “non-binary”, the more fluid approach taken to gender and sexual orientation by many young people is likely to have a major impact on the diversity policies of the future, it believes.
“The dialogue over transgender is an interesting and timely one,” says director Richard McKenna. “But given the greater open-mindedness of many of the young people coming into the workforce in great numbers today, I believe it is a conversation which can only become broader over time.”
For Asda, it is very much a case of learning about transgender issues on the job, says Hayley Parker, diversity and inclusion manager at the supermarket, where around 1,690 employees (roughly 1%) identify themselves as transgender.
“The main practical obstacle to maintaining a coherent trans policy across the whole business is its diversity and the fact that we have a very disparate and, at 180,000, large workforce spread over a whole range of different sites and functions,” she says.
“But in 2014, our annual ‘Your Voice’ colleague survey clearly showed that our trans colleagues were very unengaged and very unhappy and this really spurred us on to do something positive.”
Since the survey, the firm has launched a series of online video interviews with trans staff via its “Getting to know you” series and has established a closed Facebook group, to which Parker is invited. In the process, engagement has doubled, she adds.
Although rare, Asda has experience of transphobic abuse meted out by customers and takes “reasonable steps” to protect employees.
Any hint of third-party harassment towards trans staff, including pointing or whispering behind a hand, triggers a zero-tolerance policy, which can be enforced by anything from “an uncomfortable conversation” with security staff or the police, to the ultimate sanction of being blacklisted from all stores.
“We already had a broad diversity and inclusion policy, but by shining a spotlight on our trans colleagues, we have given them far more confidence to be open about themselves,” says Parker.
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Members of the social media forum, who are encouraged to talk openly about their frustrations over everything from hormone treatment to day-to-day niggles with managers, have now begun to meet face-to-face.
“Getting together really helps bridge the gap between having a well-written piece of paper on diversity and seeing how effective that policy really is day-to-day,” says Parker.
