INSIGHT: Transgender issues and avoiding discrimination: new guides for employers, employees and service providers

Posted on January 19, 2016

Transgender and gender reassignment or ‘transition’⁽¹⁾issues are currently under the spotlight with the recent release of ‘The Danish Girl’ starring Eddie Redmayne and the BBC’s reports this week such as ‘UK a long way from transgender equality MPs say’.

The BBC report followed the publication of the House of Commons, Women and Equality Commission report on Transgender Equality (dated 14 January 2016). This report deals with some of the issues causing serious problems for trans people such as transphobia, hate-crime, spousal consent and the medicalised approach of the Gender Recognition Act 2004. Further, while the Equality Act 2010 was a huge step forward in its provision of protection for trans people, its terminology is already out of date. (For example, it is recommended that the characteristic of ‘gender reassignment’ under the Equality Act should be changed to ‘gender identity’.

There is also acknowledgement that the NHS is letting down trans people and is failing to meet its legal duties under the Equality Act by, for example, including its offer of gender identity services as part of mental health services (thereby giving the misleading impression that trans identity is a disorder of the mind).

The House of Commons report requires the Government to agree a new strategy so that it can provide full cross-department support to deal with these issues and to support trans people effectively.

Transgender issues in the workplace – avoiding discrimination

In the meantime, gender dysphoria⁽²⁾, transitioning ⁽²⁾ and transgender issues are increasingly likely to occur in the workplace. Employers should be aware of their obligations in particular to ensure trans people are not discriminated against in the workplace or in the job application process by reason of gender assignment – and trans employees should be aware of their rights.

To help promote understanding and equality, the Government have issued a couple of new guides. One specifically relates to the workplace while the other deals with the provision of services to transgender customers.

Recruitment and Retention of Transgender Staff – guide for employers

The ‘Recruitment and Retention of Transgender Staff’ guide was issued by the Government Equalities Office on 26 November 2015. The guide:

sets out practical advice, suggestions and ideas on how to recruit and retain transgender staff and potential employees;
will be useful for those who manage transgender staff and for transgender people themselves;
explains the legal background including the Equality Act 2010 and the Gender Recognition Act 2004; and
provides useful summaries on how to create a transgender-friendly workplace.

Providing Services For Transgender Customers

This second guide: ‘sets out guidance and good practice examples to help service providers ensure transgender people are welcomed, included and valued as customers, clients, users or members, and to ensure they are treated fairly and appropriately. It also aims to help service providers comply with the law’ (see the Government website which includes a link to the report).

Tips for Employers for dealing with transgender issues in the workplace

Employers will find it useful to read the House of Commons report referred to above: it provides excellent explanations of the issues and the problems and prejudice (‘transphobia’) that transgender people experience.

In addition, employers should:

implement rules and procedures in the workplace to prevent discrimination;
communicate those rules effectively to the workplace and ensure all staff understand that discrimination harassment and victimization by reason of gender reassignment is unlawful; and
ensure they support trans people undergoing transition by respecting their wishes on how to deal with it in the workplace and how or to what extent details of the transition and the previous gender should be kept confidential.

Tips for transgender employees

While the Government guide ‘Recruitment and Retention of Transgender Staff, was written for employers, it is also a useful read for trans employees.

Employees should:

ensure key people in the workplace are told about their particular situation;
ensure they tell people if time off work is needed in relation to gender reassignment; and
communicate with HR as early as possible about changing records, work emails, office passes etc.
if a problem arises or discrimination harassment and victimization is suffered by reason of gender reassignment, employees should first talk to their employer to try and sort it out informally. Otherwise, a claim to an employment tribunal should be considered.

If you need guidance on any of the above issues, please contact Susan Mayall on 0161 684 6948 or email enquiries@pearsonlegal.co.uk.

Footnotes

⁽¹⁾Gender reassignment: “when a person takes steps to alter the outward expression of their gender so that it is better aligns with sense of who they are”. See page 4 of the government guide on providing services for transgender customers.

⁽²⁾See pages 5 and 6 of the House of Commons report for a definition on Transgender Equality.

Other guidance available

For those who work for law firms: see this Law Society guidance on Transition and change to gender expression.

ACAS has published guidance on Gender Reassignment discrimination.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.