An inclusive workplace leads to a trusting and supportive environment where staff feel respected and valued, particularly those within marginalised groups such as transgender and non-binary employees.
It’s a challenge that is faced by transgender employees everyday.
Employers can help promote an inclusive environment by ensuring their staff understand the importance of treating their colleagues with respect – this can be achieved through the implementation of supportive internal policies and practices (e.g. fair and inclusive hiring practices), providing high quality equality, diversity and inclusion training and communicating a zero-tolerance attitude in response to incidents of harassment, bullying and discrimination.
Employers should also ensure they are well-informed on the laws around transgender employment rights and protections, including the potential legal recourse that an employee could take if they were to find themselves the victim of bullying / harassment. This will be explored in further detail below.
The Law around transgender rights
Under the Equality Act 2010 (‘EA 2010’), discrimination and harassment because of or in relation to ‘gender reassignment’ is unlawful.Gender reassignment is a protected characteristic under the EA 2010 and applies to individuals who are “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of assigning the person’s sex by changing physiological or other attributes of sex”.
This therefore applies to transgender people whose gender identity does not match up with the gender they were assigned at birth. Every transgender person’s journey is different and they do not need to have undergone a medical procedure to change their gender in order to qualify for protection from discrimination.
Time off for transition-related appointments
Transgender employees may require time off for appointments related to their transition. Employers must ensure:
- These absences are treated fairly and not unfavourably.
- They are handled in the same way as absences for injury or sick leave.
This includes providing sick pay during these absences, in line with the employer’s usual policies.
Gender Recognition Act 2004 and legal gender change
Another relevant piece of legislation employers should be aware of is the Gender Recognition Act 2004 (‘GRA 2004’). Under the GRA 2004, anyone over 18 years old can apply for a gender recognition certificate should they make the decision to legally change their gender. Key points to note are:
- It is not necessary for employees to have a gender recognition certificate to be protected under the EA 2010.
- Employers cannot request or demand a gender recognition certificate during recruitment or employment.
If an employee discloses to their employer that they hold such a certificate, this is considered personal information and cannot be disclosed by the employer. For example, a member of the HR team who has been informed that an applicant has a gender recognition certificate cannot then disclose this fact to the recruitment panel. If they were to disclose this information then, under the GRA 2004, this would amount to a criminal offence and the employer would be at risk of a considerable fine.
What practices should employers implement?
There is no legal obligation for employers to have specific measures in place for their transgender members of staff but there are things that employers can implement to make the workplace feel more inclusive:
Regular training
Employers should provide regular training for all their employees on transgender and other diversity issues, inclusivity, legal protections and the importance of respecting individuals’ identity and pronouns.
This training should help cultivate a supportive work environment where staff have a greater understanding of the challenges their colleagues may be experiencing and understand the importance of being respectful to one another. This training is particularly useful for managers who may deal with complaints relating to these issues.
Policies
Clear policies should be developed which expressly prohibit discrimination based on gender identity and expression. An example of this could include a policy which requires staff not to wilfully misgender their colleagues (where one employee deliberately refers to someone by the wrong pronoun) or ‘deadname’ them (where one employee will use their transgender colleague’s name given to them at birth rather than their preferred name which is in line with their gender identity). Employers should ensure that these policies outline the procedures for reporting and addressing any incidents where one feels discriminated against because of or in relation to their gender identity and/or expression.
Another consideration when reviewing your policies is whether gender neutral language is being used. Employers may wish to adopt using they/them terminology which is applicable to all staff whilst not actively excluding transgender employees.
Confidentiality
Any records held by an employer regarding a transgender employee should be kept strictly confidential and should only be shared where necessary. This should be communicated to all employees, particularly members of the management and human resources team. Ultimately, it is the employee’s decision whether they wish to discuss their gender history at work and this is not something which should be decided for them – employers should therefore assume that this information is confidential unless expressly told otherwise by the employer.
Discussion and feedback
Whilst employers should encourage discussion of gender identity to ensure that there is an open dialogue in the workplace, employers should refrain from asking transgender employees unnecessary personal / invasive questions. The exception to this is if an employer were to reach out to their transgender employees to ask them for their opinion on how they can be better supported by them. This should give employers the opportunity to provide a safe and supportive working environment and make their staff feel that they are being heard.
Facilities
Best practice would be for employers to have unisex bathrooms or to let transgender employees know they can use their preferred facilities. They should not be encouraged to use a separate bathroom (e.g. disabled facilities). Employers could also consider implementing gender neutral uniforms or, alternatively, a gender neutral dress code.
Guidance on transgender inclusion at work
The CIPD has published some helpful guidance on transgender and non-binary inclusion in the workplace to help employers understand transgender and non-binary people’s experiences / challenges in the workplace. This guidance explores not only employment law but also workplace culture and the employee lifecycle. We would suggest that employers read through this guidance to help gain confidence in how they can support transgender and non-binary employees.
Legal recourse for transgender employees facing discrimination
Goughs solicitors are leading employment law specialists who can provide expert guidance to both employees and employers across all sectors and industries on navigating the complexities of discrimination claims and the protections available to employees under the EA 2010.
Please do not hesitate to get in touch if you have any queries relating to this article.
