Do you know the 5 points to consider regarding gender reassignment?
The ‘Trans Employee Experiences Survey 2016’ was a survey carried out on over 400 trans people across the UK. Findings have shown that 60% had experienced transphobic discrimination in the workplace and 53% had felt the need to hide their trans identity from work colleagues.
Majority of people are assigned with a gender at birth whether this is male or female. However, a small population do not identify themselves as matching their gender identity from birth. Where these individuals are taking steps to transition into their desired gender they would described as being ‘transgender’.
No matter whatever stage of the transition period the employee is at, The Equality Act 2010 protects employees from certain types of discrimination related to gender reassignment irrespective of whether or not it involves undergoing any specific treatment or surgery. However, employees will not have protected transgender rights unless they propose to change their gender or have done so. For example, a group of male staff on a works party decide to wear fancy dress outfits as women and are turned away from the venue. They are not transsexual so not protected from discrimination.
Transition can be daunting
The transition process can be a daunting experience for an employee socially, psychologically and emotionally as it is likely to involve changing their physical attributes, as well as what they are referred to, as in their name; therefore it is crucial for employers to understand how to handle any matters relating to gender reassignment and transgender and we have outlined a few common points that it would be prudent to consider:
- An individual should only be identified as transsexual with their consent preferably obtained in writing together with agreeing how this is to be communicated to staff, with awareness training being provided to such staff as part of any dignity in the work place or equality or anti-harassment policies. ‘Outing’ (disclosing a person's sexual orientation or gender identity without that person's consent) may be deemed as discriminatory under the Equality Act. Therefore, employers must take due care when referring to colleagues about a transgender person.
- Employers must ensure that the employee can use toilet and shower facilities appropriate to their expressed gender identity without fear of harassment (any hostility motivated towards an employee on grounds of transgender could also be a criminal offence under Criminal Justice Act 2003). Staff should not be made to use a single gender-neutral (unisex) toilet unless they choose to do so. Where practicable toilet cubicles should be designed or adjusted for maximum privacy by having partitions and doors that extend from floor to ceiling.
- Employers must take care when dealing with employee’s absences when they are undergoing gender reassignment. Some employers use ‘absence triggers’ where this may result in a warning or dismissal due to the number of absences. It is important to seek advice prior to taking any action to avoid the risk of discrimination.
- Where employers have health insurance schemes; they may wish to include treatments for gender reassignment so that transsexual employees do not feel excluded. To also ensure that, with any employee related insurance benefits, there is nothing in the policy terms that invalidates the insurance where gender reassignment is not disclosed.
- Some people may question their gender and go through a difficult experience with their family and/or friends. This experience may amount to mental health issues such as anxiety and depression. Findings by Lobby Group Stonewell suggests that “almost nine out of 10 trans people have or had depression compared to one in four of the rest of the UK population”, such a condition may also fall within disability within the Equality Act and HR guidance should be obtained by employers in this context.
The Equality Act does not cover anyone other than people who are proposing to go through gender reassignment and changing from male to female or female to male. It is important to note that the Equality Act does not protect gender fluid (a person who does not identify themselves as having a fixed gender), non-binary (person who doesn’t identify as male or female), non-gendered or transvestites unless the decision to cross-dress is part of the gender reassignment procedure.
