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How employers can support gender identity at work

Trans is an umbrella term used to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.  It covers a variety of terms but may include people who describe themselves as transgender, gender-fluid and non-binary.

It unfortunately remains the case that trans workers face significant hurdles in the workplace.  The CIPD produced a report in February last year which found that 18% of trans workers felt psychologically unsafe at work and 55% had faced conflict in the workplace, including discriminatory behaviour and assault (physical or sexual).

Discrimination on the basis of ‘gender reassignment’ is unlawful under the Equality Act 2010.  The wording of the statute is outdated but the definition of gender reassignment i.e. a person who is ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’ arguably covers gender identity and those who do not identify as any gender.   Indeed, the Employment Tribunal in Taylor v Jaguar Land Rover Ltd [2020] was of this view.

So, what can employers do to create a positive and inclusive working environment?

Educate themselves and encourage colleagues to do the same

A report conducted by the Institute for Employment Studies for ACAS in 2017 found that the biggest barrier to inclusion was a lack of knowledge amongst employers which can lead to line managers having less confidence in dealing with issues and persistent stigma. Raising awareness of the issues is clearly, therefore, vital here.

Use more gender-neutral language

Employers should consider flexibility around language used including, for example, the use of pronouns, titles and gender information.  For example, it may be employers can adapt their recruitment processes to ensure titles and gender are not requested and job adverts contain gender neutral language.  Some employers have also already started listing the appropriate pronouns for each member of their staff in email signatures to raise awareness of appropriate terminology with those with whom they are conversing.

Terminology relating to gender identity can be a difficult area for employers and workers to navigate as it is constantly evolving and there are differing views on the appropriate terminology to use.   There are guides available online (such as ACAS’s ‘Gender identity: Terminology’ – although this has now been archived) which can be helpful for employers although its important to bear in mind that terminology may have evolved since publication.

Have policies in place and review wider policies

Having robust policies in place on inclusion and gender identity will greatly assist in promoting an inclusive, supportive and positive working environment.  Many employers now have a specific gender identity policy in place as well as policies relating to anti-bullying, anti-discrimination and equal opportunities.

Wider policies should be reviewed and updated to ensure they adequately promote inclusion.  This may include policies like dress codes which may have negative implications for those anyone who identifies as a different gender to that they were assigned at birth or who do not identify with any gender (such as gender-fluid and non-binary individuals).

Provide training

As is always the case, having a policy in place will not be enough and employers need to ensure staff are aware of the policy and that adequate training is provided to staff at all levels to help raise awareness and promote inclusion.

Create an action plan for supporting colleagues who are transitioning

Employers should give advance thought to the factors that they may need to consider when assisting a colleague who is transitioning at work.  All individuals are different and will have different needs in these situations.  As such, its important employers follow the individual’s lead and listen to them about what they would like to happen.  An action plan can then be created with the individual setting out the steps that will be taken and when.  It is good practice for managers to have a checklist of the potential matters and issues to discuss with individuals when preparing this action plan to increase their confidence in assisting and supporting their colleagues and to ensure all relevant matters are given proper consideration and can be actioned promptly.

We have prepared a checklist to help employers who are assisting colleagues transitioning at work.  This includes discussing key dates with the individual and deciding who will need to be informed.  It also includes consideration of equipment and records which will need to be altered (such as photo identification, email addresses and log in details).

See our checklist here.

18% of trans workers felt psychologically unsafe at work and 55% had faced conflict in the workplace, including discriminatory behaviour and assault. 

Deal with absence appropriately

Employers need to act carefully in considering absence related to transgender reassignment.  They must treat individuals in the same way as they would for others who are absent, for example those attending medical appointments.  Using such absence in triggers for disciplinary processes or redundancy processes may be discriminatory.

In addition, some trans workers may suffer with gender dysphoria or related conditions connected to their gender identity which may be classed as a disability under the Equality Act 2010.

It’s good practice for employers to discuss any absence with their employees and accommodate their needs in line with usual practices and procedures. Types of leave should be labelled accordingly (subject to confidentiality restrictions) to ensure they can be discounted, as needed, as part of any wider process.

Consider facilities available

Consider if you have any single sex facilities, such as toilets, changing rooms and showers, which may make individuals feel uncomfortable or isolated.  Is it possible to have gender neutral facilities?  Employers should allow staff to use facilities that align best with their gender identity.

Have data management protocols in place

In its report, ACAS, recognised that another barrier to inclusion was employers not having clear protocols for data management to avoid non-consensual disclosure of information.  If an individual transitions during employment, employers may find they hold employment records relating to their transitioning and records that contain the individual’s previous name or gender.

In addition to risks of unlawful discrimination if data is used inappropriately, data relating to gender reassignment will be special category data under data protection legislation and should be handled very sensitively and in line with data protection principles.  It should also be noted that revealing information relating to an individual with a Gender Recognition Certificate will be a criminal offence in certain circumstances.

Although it can be a difficult area for managers to navigate sometimes given it is constantly evolving, reminding staff and managers that treating everyone with respect and tolerance, and reflecting a genuine desire to learn, with people reciprocating these values if genuine mistakes are made, will go a long way to creating a supportive culture.

Our employment team is on hand to assist you with any of the points discussed above including drafting and reviewing policies.  Contact us here.

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Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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