Our first guest contribution for LGBT History Month 2016, Helen Burgess and Michael Briggs, employment law specialists at Shoosmiths, examine the most recent developments in transgender rights in the workplace and offer advice for employers on fostering an inclusive environment.
For the majority of people, their innate sense of being male or female (their gender identity) matches their birth sex, commonly referred to as cisgender. However, some people are born as a particular gender which does not match the gender that they identify with. As such, they may undergo the process of aligning their life and physical identity to match their gender identity. This is the process known as ‘transitioning’, and this can be with or without medical intervention.
In this article we focus on transgender employees in the workplace and suggest best practice that all employers should adopt to create a more inclusive culture.
The Women and Equalities Committee
On 27 July 2015, the House of Commons Women and Equalities Committee launched an inquiry into transgender equality in the United Kingdom. The timing of the inquiry reflected a general trend of increased awareness, with Trans issues increasingly making front page news. There was, for example, a media frenzy when Kelly Maloney documented her transition from male (Frank Maloney, the boxing promoter) to female. Soon after, Vanity Fair featured Caitlyn Jenner on its front cover and reported on her own gender transition (previously she was known as Bruce Jenner, of the Jenner-Kardashian dynasty).
Most recently, and tragically, the media has brought to our attention the deaths of two transgender women in prison custody, Vicky Thompson and Joanne Latham, as well as the case of Tara Hudson, all of whom were placed in male prisons. This not only called into question how transgender people are treated by the prison service and the NHS, but also raised the public’s awareness of some of the difficulties encountered by transgender people today.
These high-profile cases called into question the necessity for passports and driving licences to state whether the holder is male or female. The government must surely now move towards ‘non-gendering’ of official records and only record gender when it is a directly relevant piece of information.
Britain has made significant progress in recognising gay, lesbian and bisexual rights, both in and out of the workplace and in the provision of services. However, as the media continues to highlight, you are more likely to face discrimination as a transgender person in today’s society. This was reconfirmed in the conclusive report from the government inquiry. The key findings of the report confirm that:
- Transgender people experience high levels of transphobia, and inequality generally, on a daily basis.
- Around half of young transgender people, and a third of transgender adults, attempt suicide.
- Legislation in the area of ‘transgender’ and ’gender recognition’ is out of date.
Issues in employment
The report recognises that there remains a lack of awareness and understanding in relation to gender identity issues by employers. This sometimes results in employers failing to support staff effectively, largely because they do not have the knowledge and/or the confidence to do so.
Recommendations from the report have therefore included:
- Improving legislation to allow for greater dignity and personal autonomy within the gender transition process. The ‘medicalised’ approach to transitioning is outdated. The process of gender reassignment referred to in the Equality Act 2010 can be a purely ‘social’ process and needs to be recognised.
- Extending the definition of ‘protected characteristics’ under the Equality Act 2010, to include ‘gender identity’ or ‘gender expression’. Not limiting protection of Trans people to those proposing to undergo, who are undergoing or have undergone, a process of gender reassignment and have been granted a Gender Recognition Certificate.
- Ensuring that allegations of transphobia are taken seriously and, in particular, as seriously as any other cases of discrimination, harassment, victimisation or other misconduct.
- Recognising transgender issues within equal opportunities policies and any equality-awareness training.
- Having policies and procedures in place which relate to and assist transitioning employees. These will also benefit those managing the process on behalf of the employer.
In December 2015, the government published guidance for employers in relation to the recruitment and retention of transgender staff. This was aimed at creating transgender-friendly workplaces that recognise the differing needs of all their staff. The importance of affording dignity, actively making staff feel included and dispelling fear of discrimination in the workplace is stressed throughout. Where this is achieved, staff that are treated equally will be engaged, more productive and will generally add more value to a business. Further still, where people feel valued by their employer for the contribution they can make as an individual, regardless of gender identity or any other protected characteristics, they are more likely to:
- go the extra mile
- have better attendance
- be a better team member
- stay longer and offer loyalty
- talk about their employer in positive terms
As such, the recruitment and retention of transgender staff need not be a complex or difficult process. With knowledge and the offering of support, the benefits are clear.
The guidance goes beyond recruitment and retention and also serves as a useful guide for managers and transgender staff themselves. It contains practical advice, suggestions and ideas, based on the expertise of its contributors, including transgender people who were willing to share their own experiences to help others. It is available for anyone to read and is, therefore, essential for all managers and employers generally, whether or not they are currently faced with matters concerning the recruitment or retention of transgender staff. The Law Society also provides additional guidance in its Practice Note, designed to help everyone in a law firm to work respectfully with transgender people. Overall, all those employed within the legal profession can help and support their colleagues who may be transitioning or have transitioned, both in and out of the workplace.
From a transgender employee’s perspective, one of the most difficult things that they may encounter in the workplace is having to approach their manager to tell them that they are planning to transition. Anticipating a manager’s reaction, or how an employer generally may deal with such information, can be extremely daunting. These concerns are clearly offset when the employer already fosters an open, inclusive and supportive environment, free from discrimination. The individual will likely feel more comfortable having that initial conversation as they will feel that their manager will deal with the situation with dignity and respect.
It is important, from the outset, to sit down with the employee concerned to understand their wishes and agree on an action plan for the transition process, setting out how the employer can, and will, help. These meetings must be approached with care and sensitivity, with assurances of confidentiality, and will allow:
- The employer to gain an understanding of any concerns that the employee may have regarding the transition process and any perceived impact on the workplace.
- Both parties to discuss the anticipated timeframes involved, including those that the employee would like to work to. The timeframe should be led by the employee and the employer should maintain flexibility and sensitivity in response.
- The employer to outline the support available throughout the process, including any arrangements for time off for the medical transition procedure and access to occupational health.
- Both parties to discuss whether the employee wishes to stay in their current post, be redeployed or change their working practices in any way (and if so any changes can be accommodated).
- The employer to give assurances as to the individual’s right to privacy, depending upon the employee’s approach to openness in each case.
Once employers are aware of an employee’s intention to undergo gender reassignment, they should take steps to ensure that the transition process at work is a fluid one. Regular meetings with the employee concerned will enable the employee and employer to establish when:
- The employee envisages changing their name.
- The employee would like to be addressed as their new gender or otherwise feels comfortable being referred to as the opposite sex.
- The employee would start using single sex facilities of their new sex. It is for the employee and employer to decide the arrangements for this, and any transitional arrangements that may be put in place. A permanent move to using the facilities of their new sex will usually be when the employee begins to present themselves permanently in the sex to which they identify. It is not acceptable to require a transitioning employee to use a separate toilet for the long term, such as a disabled toilet, but this may be an agreed temporary measure.
- Personnel records are to be updated. In this respect, employers are encouraged to create new records rather than amend old ones, to ensure confidentiality for the employee.
- New means of communication will be created, including email addresses and business cards.
Upon completion of the transition process, the employee will recommence work having changed gender identity and employers should carefully oversee their return. Employers should not inform colleagues, clients, customers, suppliers or others that an employee is undergoing or has undergone gender reassignment without that employee’s express consent. Additionally, an employer should not disclose an employee’s transgender history under any circumstance.
Employers should also be vigilant and ensure that all policies are adhered to and that any inappropriate behaviour of others in the workplace is not tolerated and is dealt with in accordance with disciplinary procedures.
Policies and procedures
Having policies and procedures in place which relate to a transitioning employee will assist not only the employee, but also those managing the process on behalf of the employer. Suggested changes to policies and procedure include:
- Gender identity or gender expression being recognised as protected categories in any anti-harassment or non-discrimination policies.
- Transgender being recognised within an employer’s equal opportunities policies and expressly covered in equality-awareness training.
- Grievance procedures being easily accessible to allow for any complaints to be raised on a confidential basis.
- Reviewing absence management policies to include appropriate reference to transitioning employees and transgender men and women.
The above not only provides support for all employees involved, but also ensures that employers adhere to the provisions of the Equality Act 2010, which protect transitioning and transgender staff from unfair treatment in the workplace.
A review and acknowledgment of the aforementioned guidance by all employers would clearly go a long way towards removing any continued prejudice in this area. In any event, employers should ensure that they foster an open, inclusive and supportive environment free from discrimination, including being prepared to deal with any issues relating to transgender staff with dignity and respect. Lack of knowledge and understanding is not a valid excuse and employers should take an active role in enforcing a zero-tolerance approach to transphobia behaviour, should it exist in their organisation.
Helen Burgess joined Shoosmiths in 2002 as a trainee, qualifying in 2004 and becoming partner in 2013. You can connect with her on LinkedIn here.
Michael Briggs, a senior associate, qualified as a Solicitor in September 2006, and joined Shoosmiths in May 2013. You can connect with him on LinkedIn here.
Interested in Trans issues? Read our interview with Ava Benach, Transgender Lawyer and Immigration Law Expert, here.
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