What rights do transgender people have in the workplace?
Transgender people are currently protected by two key pieces of legislation – The Equality Act 2010 (EA) and the Gender Recognition Act 2004 (GRA).
The EA prohibits discrimination in employment on the grounds of one of nine protected characteristics, of which gender reassignment is one. This protection applies to those proposing to undergo, undergoing, or who have undergone a process (or part thereof) to reassign their sex by changing physiological or other attributes of sex. This transition does not require any medical intervention to be protected under the EA. The EA gives transgender people protection against direct and indirect discrimination, victimisation and harassment on the grounds of their transgender status. These protections do not apply to non-binary individuals who do not identify as either a man or a woman (although in some cases it may be possible for those individuals to rely on discrimination by perception).
The GRA allows transsexual people to obtain a Gender Recognition Certificate (GRC) to legally change their gender, once they have lived as their acquired gender for two consecutive years and intend to continue living as their acquired gender for the rest of their lives. Whilst one can change the name and gender on one's passport and driving licence with relative ease, a GRC is required to change the gender on an individual's birth certificate. Transgender people who have not obtained a GRC will still be protected by the EA.
How is this landscape changing?
In July 2018, the Government Equalities Office (GEO) launched a consultation on proposed reforms to the GRA to make it easier for transgender people to obtain a GRC and thereby be legally recognised as their chosen gender. The consultation received more than 100,000 responses and sparked widespread debate. The GEO responded to the consultation on 22 September 2020, concluding that:
- the balance presently struck by the GRA was correct, with proper checks and balances, as well as support for those who wished to change their legal sex;
- the process that those applying for a GRC are required to go through should be improved to be "kinder and more straightforward", with the fee being reduced dramatically; and
- steps will be taken to address the state of healthcare for transgender people.
There are no plans at this time to change the legal framework to allow individuals to self-determine their own preferred gender, as is increasingly the position in other legal systems.
Practical guidance for employers
We have not yet reached a point where transgender staff enjoy any greater protection than staff who have other protected characteristics. Given the recent consultation on the GRA, it seems that any change in this regard may still be a long way off. Employers will want to promptly address any discrimination transgender individuals are facing. However, employers may also want to take positive steps make it clear to transgender employees that they have their support and respect, and can be themselves at work. This should start from the top but steps need to be taken to ensure that this ethos is fostered by all employees. As with any type of discrimination, this may be challenging, particularly in larger organisations.
The starting point for employers will be ensuring that the right policies and procedures are in place. Employers are liable for their behaviour towards transgender employees as well as any harassment, bullying and discriminatory behaviour directed at transgender employees by their staff. Employers should put in place anti-harassment, anti-bullying, equality and diversity policies, and train employees on these to create a culture that will prevent negative behaviour occurring. Some employers may wish to implement a separate transgender policy. Other points to implement are set out below.
- Transgender staff should be encouraged to speak openly and honestly with their line managers, which will allow staff to request, and employers to make, adjustments to the workplace.
- Allow transgender staff to use the facilities available to their identified gender. Guidance released by the GEO indicates that it will be best practice to work with the relevant individuals to determine the date on which they will commence using their preferred facilities and whether any communication about this will be made to other employees.
- Do not share an employee's gender status and transition history without their permission. This information is confidential. The permission of the transgender individual should ideally be gained in writing. If there is no permission, this information absolutely must not be disclosed. Disclosure without permission may be a criminal offence.
- Transgender employees should be allowed to take time off work where appropriate when going through a transition. These absences should not be treated less favourably than any absence for illness or injury – to do otherwise will constitute direct discrimination. That said, transgender people should not be treated as having an illness or injury. However, it should be recognised that they will need time to recover from any transition procedures. Legislation does not dictate a minimum or maximum amount of absence during transition. As such, requests should be accommodated in line with normal procedures.
- Gender reassignment discrimination may be lawful in circumstances where the requirement that an employee is not a transsexual person is an occupational requirement, the requirement is a proportionate means of achieving a legitimate aim and the employee does not meet the requirement. This does not give a green light to discrimination – it will only be relevant in a very limited number of sectors and employers should challenge themselves on whether it applies in their own circumstances. Advice should be sought before taking any action that might constitute discrimination.