It is becoming increasingly apparent that transgender people can suffer disproportionately from harassment and other kinds of disadvantage at work. However as they are a relatively small group – probably less than 1% of the population – employers do not always have the opportunity to build up the kind of practical experience that would give them confidence to address the particular needs of transgender staff appropriately.
This note highlights some of the main issues that employers are likely to encounter, and points to further sources of information and guidance. While there are legal obligations to consider, the Government Equalities Office guidance also sets out the business case for supporting the recruitment and retention of transgender staff.
Understanding the term transgender
Transgender is commonly used to refer to people whose gender identity does not comfortably or consistently match with the gender they are assigned at birth. Some, but not all of these people, will wish to embark on the process of “transitioning” to live in the gender they identify as. Each trans person’s transition will involve different things. For some, but not all, it may involve what is called “gender confirmation treatment” (for example through hormone or surgical treatments). Exactly which terminology is preferred to describe certain treatments may also vary between different trans individuals.
Some trans people will identify as a particular gender, different to the gender they were assigned at birth. Other trans people identify as “non-binary” – and might, depending on the individual, consider themselves to be both male and female or neither male or female.
Trans people are commonly grouped with lesbian, gay and bisexual people (LGBT is the commonly used acronym). However it is important to appreciate that gender identity needs to be considered separately from sexual orientation.
Towards an inclusive workplace for transgender people
There are a number of steps the employers can take, many of them fairly straightforward:
Titles and pronouns: Forms and policies often use gender-specific pronouns when the gender neutral “they/them/their” would be equally appropriate and more inclusive of non-binary individuals. Similarly most common titles are gender specific (Mr, Mrs Miss etc). Either a gender neutral alternative should be offered (eg Mx) or staff should have the option of choosing not to be assigned a title.
Monitoring: Questions about gender at birth (if asked for monitoring purposes) should be kept separate from questions about sexual orientation. There should also be a “prefer not to say” option.
CRB checks: It is not widely known that there is a separate, confidential checking process available for transgender people, which avoids the risk of disclosing information which could reveal that the employee had a different gender in the past.
Facilities: Most of the employment law cases have focused on the use of appropriate toilet facilities for transgender staff. Government Equalities Office guidance explains that: “a trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full time basis they should be afforded the right to use the facilities appropriate to the acquired gender role. Employers should avoid discriminating against anyone with the protected characteristic of ‘gender reassignment’. Where employers already offer gender-neutral toilets and changing facilities, the risk of creating a barrier for transgender people is alleviated.”
Uniforms/dress codes: Best practice here would indicate that organisation should adopt gender-neutral approach to uniforms or dress codes. Where this is not considered practicable, appropriate support should be offered to trans people to allow them to wear what is appropriate to the gender they choose to present in at work. Preventing a transgender person from wearing clothing of the gender they choose to present in can be unlawful discrimination.
Mentoring and support: It is a good idea to identify the people in the organisation who are best placed to offer advice and support to transgender members of staff. Sometimes establishing a support network can be the best way to achieve this. Often support for trans people is delivered as part of a wider LGBT network, though as noted above, the needs of trans people need to be considered separately from those of people with minority sexual orientations.
Support for staff who are transitioning
Supporting staff who are going through the complex and often lengthy transitioning process at work can be daunting for employers. This is an area where careful engagement with the member of staff concerned and careful planning can really pay off. Employers are referred to the guidance from the Government Equalities Office which has some helpful guidance about how to plan this process.
A note on the Equality Act
Currently the Equality Act 2010 identifies a person who is planning to undergo, is undergoing, or has undergone gender reassignment as having a separate protected characteristic. This definition is not currently wide enough to cover all transgender people with complete certainty. There is pressure on the Government to change the law to make this clear, though employers can in practice assume that any kind of discrimination or harassment based on gender identity is likely to be unlawful.
Further help and guidance
Government Equalities Office: This guidance, published last year, is a useful resource. Although it does not cover all the relevant issues in as much detail as could be hoped, it includes links to a range of organisations that can provide help to employers and support to transgender employees.
Stonewall: Earlier in 2016 this leading LGBT charity released a suite of six guidance documents. Its first steps guide to trans inclusion provides the best starting point.
The author thanks members of Mills & Reeve’s LBGT+ forum Spectrum for their help in the preparation of this note.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.