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To start a discussion about the protection offered by the law to the trans community at work highlights immediately the first issue – that gender identity in the workplace is a very complex matter. This was highlighted by the Women & Equalities Select Committee (WESC) in 2016 and echoed by ACAS in 2017 in their research paper entitled ‘supporting trans employees in the workplace.
The problem starts with the ‘labels’ assigned by the law. The Equality Act 2010 says that ‘gender reassignment’ is a protected characteristic and says at s7 ‘a person has the protected characteristic of gender reassignment if the person 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.’ The law labels these workers ‘transsexual’.
This gives the impression that only those going through a medical process are protected but as the guidance to the Equality Act makes clear, ‘to be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one’.
All of this leads to confusion as to whether those who are non-binary (where the worker may be neither male or female, may be both or take a different approach to gender completely) or intersex (a naturally occurring phenomena where, in some variations, the worker’s appearance at birth is neither male or female) are covered by the current anti- discrimination law. Whilst they still may be able to claim discrimination if they are perceived to be undergoing gender reassignment, it would be a daunting and potentially humiliating process to try and persuade a Tribunal that they have been discriminated against.
Both WESC and ACAS were united in their recommendations that because of this confusion and uncertainty that the Equality Act should be amended to refer to ‘gender identity’ as a protected characteristic and move away from reference to gender reassignment. These recommendations were turned down by the Government who felt that the law was clear enough.
However, it is not just the wording of the legislation that is the problem. Both WESC and ACAS highlighted a lack of support for employers in understanding some of the issues faced in the work place in matters of gender identity and they heard directly from the trans community as to the levels of transphobia which still exists in the work environment.
Research carried out by Crossland Employment Solicitors supports both the WESC and ACAS findings. There is confusion over who is covered by the law and one of the most startling findings was that only 9% of the 1000 employers surveyed across a wide range of businesses answered yes to the question ‘Should all transgender people, whether they’ve undergone medical gender reassignment or not, be protected under the law against discrimination?’
A third of those surveyed were less likely to employ a transgender person and 43% were ‘unsure’. So, transgender workers are already facing an uphill battle in the recruitment process.
Even if they do overcome the odds and are recruited then only 3% of those businesses surveyed said that they have an equal opportunities policy which openly welcomes transgender workers and only 4% think that their culture is diverse enough for transgender workers to fit in. 88% said they had no policies which were specific to transgender issues.
There are of course also practical issues such as which toilets should be used? The obvious answer is to have unisex toilets. However, despite this being a practical solution, only 2% of employers in our survey supported the introduction of unisex toilets.
Stonewall’s recent report suggested that gender identity was being masked in the workplace to avoid issues and this may well be supported by the findings in Crossland’s survey that 77% of people polled had never knowingly worked with a transgender employee. Given the UK is facing a growing skills crisis across many professions, not having an inclusive workplace may well be depriving employers of good talent, when only a few small changes need to be made.
HR professionals should review internal policies and see just how inclusive they are. Information is available from ACAS on steps to ensure that trans gender workers are invited to interview, for instance by removing reference to whether they are ‘Miss’ ‘Ms’ ‘Mr’ or ‘Mrs’ on the application form or asking for previous names. If applicable, advising those who are transgender of the Sensitive Application Process under the Disclosure and Barring Service application system.
Ensure that equal opportunities training includes specific reference to transgender workers and that sanctions for harassment and abuse of them are equally as severe. This should be done voluntarily rather than being driven by transgender workers. Larger organisations can have trans ‘champions’ to whom those who are transgender can go to and talk through issues.
So, take some minor steps to ensure your business is one where everyone feels welcome and valued – it will be by far a more productive one.
About the author
By Beverley Sunderland, Managing Director of Crossland Employment Solicitors which specialises solely in employment law.