Transgender issues have received increased publicity over recent years, in no small part due to the public transition of Caitlyn Jenner.
As well as obligations under the Equality Act 2010 with regard to discrimination, employers have an overriding duty of care to their employees and should be mindful of potential issues surrounding gender identity when it comes to their own workforce.
Although the number of transgender people in the population is considered to be relatively small, the costs to employers of dealing with transgender issues incorrectly can be very significant on a commercial, reputational and, above all, human level. Therefore, it is important to know how to deal with such challenges before they arise.
The following is a quick guide to spotting the issues and supporting a transgender employee in the workplace.
1. What does “transgender” mean?
A person who is transgender feels that they do not identify with their biological sex assigned at birth. They may identify completely with the opposite sex, in which case they may choose to take steps to transition to live in that opposite gender, either medically or otherwise.
The term transgender also encompasses people whose gender identities are not exclusively male or female.
2. Every person is different
It is important to recognise that every transgender person is different and will want to approach their transition differently. Ensure that the individual is consulted with and asked about how they want to approach different issues, such as how to announce their gender transition to the rest of the workforce. For example, whilst one employee may wish to undergo their gender transition publicly, another may wish to do so in the most discreet way possible.
When a difficult issue arises, work with the individual and discuss it with them directly. Ask what they are comfortable with. There may be compromises on certain issues that can be explored that will help smooth the transition for both the employee and the rest of the workforce.
Issues surrounding gender identity are still very new to a lot of people and are widely misunderstood. If an employee is about to undergo a gender transition, training for other employees in the workplace is highly recommended. This will ensure that they understand what a gender transition means for their colleague and how to act in a non-discriminatory way, for example by using appropriate terminology.
As noted above, it is important to keep in mind the wishes of the individual undergoing a gender transition. It may be the case that the affected employee does not want the rest of the workforce to know about their transition yet, so think about running diversity training, which includes discussion of transgender issues, without naming the individual.
4. Equality Act 2010 protection
The Equality Act aims to protect employees (and job applicants) with certain protected characteristics from various types of discrimination, harassment and victimisation in the workplace.
“Gender reassignment” is a protected characteristic under the Equality Act. This extends protection to those who are taking steps to transition into a new gender, which can include processes such as facial surgery or hormone therapy, as well as genital surgery. It could also arguably include taking steps such as growing longer hair or having facial hair electrolysis if this is for the purposes of reassigning gender.
As soon as an employee approaches their employer to inform them that they intend to take steps to reassign their gender, they are protected under the Equality Act. Any employee who discriminates against, harasses or victimises a transgender employee could be liable for such acts personally, as could their employer.
As an example, it is important to note that under the Equality Act, it is discriminatory to treat a transgender person less favourably because of any absence due to gender reassignment than they would treat another employee for any other kind of absence (including, for example, sickness absence).
Whilst being transgender is not in itself a disability, any associated health difficulties (including mental health issues) that a transgender person may experience could mean that the employee is “disabled” and therefore also has protection from disability discrimination.
5. Criminal liability
Under the Gender Recognition Act 2004, it is a criminal offence for a person who has, in an official capacity, acquired knowledge of a transgender person’s previous gender, to disclose this information to any other person if the transgender person holds a gender recognition certificate and has not consented to such a disclosure. This is likely to include, for example, HR personnel. There are exceptions to this rule, such as disclosing the information for medical purposes or for obtaining legal advice.
It is important for HR professionals and management to understand this confidentiality duty. It will mean, for example, that any document containing a transgender employee’s name from their previous gender which identifies them is not disclosed to anyone without permission.
6. Data protection (GDPR alert)
Details relating to an employee’s gender transition or their transgender status are very likely to be “sensitive personal data” under the (soon-to-be-replaced) Data Protection Act 1998.
It will similarly fall within a “special category of personal data” under the forthcoming General Data Protection Regulation, which comes into force on 25 May 2018. This will mean that such data can only be processed in certain limited circumstances, such as where the employee gives explicit consent or where it is necessary for carrying out rights and obligations under employment law.
It will be important to think about who has access to employee records and how much information actually needs to be stored (and for how long). Information regarding a person’s previous gender is incredibly sensitive and access to that information should be restricted.
There is also a duty to keep records accurate, so it is important to ensure that if an employee undergoes gender transition, that their records are updated with their new gender and new name (if applicable) as soon as possible.
7. Toilets and other single-sex facilities
It is likely that a person transitioning will no longer want to use single-sex facilities that are incompatible with the gender they identify with. So far as is possible, their wishes should be accommodated. You may also need to consult with other workers to prepare them for this.
Depending on the issues that arise as a result of such requests, it may be possible to put temporary measures in place for a short time to allow other workers to adjust or to allow the transitioning employee to feel comfortable. These measures could include, for example, designating certain facilities for those employees who are feeling uncomfortable or making more permanent adjustments such as providing curtained spaces in shower areas. Make sure any temporary measures are reviewed on an ongoing basis and are discussed with the affected employees.
As a general rule, it is not acceptable to require a transgender person to use the facilities of their previous gender if they no longer want to and it is unlikely to be considered good practice to require a transgender person to use the disabled facilities, especially on a permanent basis.
To “misgender” a person means referring to them in a way that does not reflect the gender they identify as. This can happen accidentally by people who knew the person before their transition, as well as maliciously. In both cases, it can be extremely hurtful to a transgender person. Ensure that the importance of not misgendering is covered in any equality training and if it is discovered that any misgendering is happening maliciously, that it is dealt with appropriately under your disciplinary procedure.
9. Dress code
It is important to make a transgender person’s transition as comfortable as possible and to allow the employee to dress in the gender that they identify with, if that is what they choose to do. At the beginning of a person’s transition, they may wish to dress in the opposite gender for only some of the time, rather than all of the time straight away. If possible, their employer should allow them the flexibility to do so.
If the employee is required to wear a uniform for work and it is gender-specific, ensure that uniform of their acquired gender is supplied to them if they request it. If uniform is supplied for health and safety reasons and the employee requests to change part of it, think about which parts of the uniform are essential for safety reasons and consider relaxing the dress code for the non-essential garments and allowing them to substitute parts of the uniform if this would help them feel comfortable.
10. Trust and confidence
On a final note, every employee has an implied term in their contract that their employer must not destroy or seriously damage the relationship of trust and confidence between them. Improper handling of an employee’s transition or a lack of support in the workplace could result in a breakdown of the employment relationship, causing the employee to resign. In addition to losing a valued employee, the employer could face a claim for constructive unfair dismissal or discrimination.
Sensitivity and creating a supportive environment before, during and after an employee’s transition will not only show compassion and help fulfil your obligations as an employer, but can generate lifelong loyalty from an employee who feels valued during what is often a very difficult time in their lives.