An employee comes into work one day and let’s you know that they are undergoing surgery to reassign their sex. You may have concerns that the individual will struggle with discrimination from their colleagues or management. How can you support them and ensure discrimination doesn’t occur?
Gender reassignment in the workplace is frequently misunderstood and as a result can lead to unwanted behaviour. In this guide, we’ll explain what forms the discrimination can take, how to avoid it, and how to support the employee during their transition.
What is gender reassignment discrimination?
Gender reassignment is one of the nine protected characteristics covered by the Equality Act 2010.
This means, if you treat someone with this characteristic different to others, this will amount to gender reassignment discrimination. The treatment doesn’t have to be intentional to be unlawful. For example, you could have a policy in place that indirect discriminates against the employee.
In other cases, colleagues or customers may treat the individual differently. You may think this degree of separation means wont’ be held accountable, however, you are responsible for the safety and wellbeing of your staff. You are also liable for any discrimination that occurs while they perform their role.
Transgender rights in the workplace
The leading piece of legislation you should refer to when considering gender reassignment discrimination is the Equality Act 2010. But what does the law say specifically about employment and discrimination of transgender employees?
Firstly, while the specific characteristic is known as “gender reassignment” the individual themselves may prefer transgender, transexual, or trans male/female. The Act itself specifies that the characteristic applies whenever an individual’s identity is different from the sex assigned to them when they were born. This means that the change can be a purely personal process with no physical changes necessary. Non-binary and gender fluid individuals are also covered under the protected characteristic of “gender reassignment.” Despite the name, the individual doesn’t have to be transitioning to be protected.
A person can be discriminated against at any point in the process, from first proposing a reassignment of gender, to undergoing the process, or completing it. Discrimination can come in many forms, including direct, indirect, harassment, or victimisation. To demonstrate exactly how it can occur, however, we will explore a few scenarios…
Examples of gender reassignment discrimination
An employee cannot be discriminated against because:
- They are trans or undergoing gender reassignment. It’s important to note that individuals, legally, are not protected unless they propose to change their gender or have already done so. For example, a cisgender man wearing a dress to work who is asked to conform to the uniform policy is not protected. He may have other avenues to claim discrimination or object to the policy, however. This leads into our next example…
- An employee is protected from discrimination if they are perceived to be trans. In the above example, depending on how the uniform policy is written and enforced, this could be grounds for discrimination. A more direct example of discrimination by perception would be if an employee is moved from a client-facing role to an office based one due to their appearance being too feminine or masculine.
- An employee is connected to a trans person. Otherwise known as discrimination by association.
The above gender reassignment discrimination examples give a good indication as to when it can occur. But, what about when you unintentionally discriminate? For example:
You have a policy that states that all employees must wear an ID badge featuring their photograph from the first day of employment with the business. Since then, the individual has changed their gender, and due to the policy, isn’t allowed to update their photo.
This is indirect discrimination and could easily lead to a tribunal claim or constructive dismissal.
Employing transgender workers
So, how do you ensure none of your policies accidentally discriminate against trans employees? Further, how do you support trans employees in the workplace?
A recent YouGov survey identified that two thirds of trans employees hid their gender identity at work. The same poll found that a third had experienced discrimination in the workplace and two in five has quit because their work environment was unwelcoming.
If you had any doubt that discrimination against gender reassignment occurs in the workplace, most surveys point towards a rise in recent years. That makes it even more important that support is given. You can start from day one of employment.
At the interview stage, make it clear you support trans staff without pressuring the individual to reveal their gender identity. You can do this by running through all of the policies you have in place. If you don’t have any trans-specific policies already in place, now is the time to review.
Here are some key aspects to consider:
- Bathroom access: introduce gender neutral bathrooms that allow trans staff to use the bathroom of the gender they align with. For smaller employers, changing the setup of the facilities may be difficult, so giving staff the freedom to use the facilities they feel comfortable with is your best option. Asking a trans employee to use a disabled toilet will likely amount to indirect discrimination
- Dress code: If you have a uniform policy or dress code, consider how it can be amended to be more inclusive.
- Pronoun and name usage: Use gender neutral terminology in all contracts and policies. This means you’ll avoid misgendering any staff, as well as ensuring the correct name and pronoun is used in the future.
- Absence for gender reassignment: for individuals going through gender reassignment, absences may be required. This is particularly true when surgery is involved. Consider whether you can make allowances for individuals who may need time off during their transition.
Finally, it’s important to give ongoing support. You can have all of the policies and procedures you need in place, but if you fail to support a trans employee when they are asking for help, you’ve fallen at the last hurdle. If an individual comes to you with an allegation of discrimination or harassment, take it seriously and investigate their claims.
Free gender reassignment white paper:
We have further information on managing discrimination with regards to trans employees. You can get this guidance for free by clicking the link below.
This White Paper sets out to explain some of the potential issues that could arise with an employee undergoing or seeking gender reassignment surgery and how to protect trans individuals, as well as make them feel accepted and welcome in your workplace.
For further advice or guidance with an HR issue in your workplace, please contact 0800 124 4134.
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