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I wonder… what my responsibilities are as an employer for my transgender employees.

May 9, 2018

Gender and gender reassignment are protected characteristics under the Equality Act 2010; this protection applies to transgender employees at any stage of transition, including those who are ‘proposing to undergo, undergoing or have undergone’ a process.  These could be social, legal or medical processes, including presenting, dressing or merely telling people of their intention to present as a different gender.  They could have changed passports, bank accounts and other legal papers, or they could be considering or have undergone any form of surgical procedure.  Unlike its predecessor (the Sex Discrimination Act) there is no requirement under the Equality Act for the process of gender reassignment to be undertaken ‘under medical supervision’.

As with the other protected characteristics, a person within the scope of the Equality Act is protected from direct discrimination, indirect discrimination, victimisation and harassment.   It is unlawful to treat a transgender employees less favourably than others because of their gender or because they are taking or have taken transitional steps.  Remember there may be associated disabilities, often around mental health concerns or physical impairments as a consequence of surgery which may also provide different protections in relation to disability as a protected characteristic.

You must ensure transgender employees are not unlawfully discriminated against, which could include misgendering them, ‘outing’ them without their permission, harassment, or generally treating them in a less favourable way. Their identified gender should have no bearing on how they are treated.

What steps can I take to ensure I do not unlawfully discriminate?

  1. It is most important that you raise awareness in your workforce ahead of any particular situation arising.  Train management staff and other employees in transgender and other diversity awareness, including the use of appropriate terminology; this training should be general and not specific to an employee.  Perhaps consider having a Pride Officer within your workforce and develop a culture of tolerance and respect.  Remember that it may not be an employee who is transgender but perhaps a family member or friend of an employee. Creating a culture of tolerance avoids the risk of associative discrimination.
  2. Remember that transgender employees have needs the same as any other employees.  They need to take time off to attend medical appointments, perhaps for mental health treatment or counselling services, and they should be allowed such time and be paid the same as if they had to attend  appointments treating a physical injury.  Often the specialist clinics that they need to attend will be in London and they may therefore need additional time to attend an appointment than would otherwise be needed.
  3. Allow a fluid dress code.  Where possible choose uniforms which are non-gender specific.  A unisex uniform or options which are open to all employees avoids the risk of an allegation of less favourable treatment.  If the uniform is required to be gender-specific, ensure that employees are provided with the uniform of the gender with which they identify.  Any rules relating to hair, beards, earrings and makeup should be all applicable to all employees to avoid discrimination.  You should also make sure the uniform sizes on offer are appropriate and can accommodate a variety of body shapes.
  4. Have safeguards in place to preserve their privacy. The Employment Tribunal suggested in the recent case of De Souza v Primark that employers could instruct specialists to help formulate policies preserving the privacy of transgender employees.  Within any business there will be a chain of command and managers may want to refer any issues to HR or higher ups.  Make sure you seek the consent of your employee before doing so, explaining to them the reason why you may want to share their conversation and invite them to agree how much information will be passed on.
  5. Allow transgender employees to use the toilets and other single-sex facilities for the gender they identify with, non-gender toilets maybe a useful solution.  Temporary measures could be put in place to allow employees to adjust and for all to feel comfortable.  Remember there may be body concern issues and ensure that you allow for privacy and respect.
  6. Be open and listen to all employees but be aware that transgender employees may have specific challenges that they wish to discuss.  Be willing to discuss anything that is making them uncomfortable, and be flexible to changing working practices to accommodate their needs.

You should be understanding, accommodating and flexible when dealing with transgender employees. If you’re unsure of your legal requirements then please contact a member of the Employment Team on 02380 717717 email employment@warnergoodman.co.uk for advice.

NB credit to Joanne Lockwood of SeeChangeHappen for sharing her experiences – Joanne is a trans advocate and works with organisations on trans gender awareness as well engaging in public speaking on the topic

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.