How to tackle transgender discrimination at work

Michelle Landy explains what HR professionals can do to support transgender employees

In today’s workplace, employers have access to a range of recruitment sources, which has led to a wider pool of talent. While this has driven a welcome increase in the diversity of the UK workplace, it does present challenges for employers dealing with diversity issues for the first time.

The Totaljobs Trans Employee Experiences Survey 2016 found that, of the 435 participants, many had experienced discrimination:

  • at the recruitment stage (29 per cent);
  • in respect of promotions (14 per cent); and
  • from colleagues (38 per cent).

This implies, as one participant commented, that “transphobia, however unintentional, is still prevalent in the workplace”.

The Equality Act 2010 offers protection against discrimination and harassment in the workplace on the grounds of several protected characteristics, of which gender reassignment is one.

Discrimination on the grounds of a protected characteristic can lead to unlimited employment tribunal awards and there is no two-year qualifying period before a claim can be made. This is an added incentive to employers to ensure they get their processes and procedures in order.

Employers (and their employees) must not treat an employee less favourably based on a perception they may have that a person is transgender or undergoing gender reassignment, or because of their association with someone else who is transgender.

Discrimination is defined as ‘less favourable treatment’ and examples in the context of transgender employees include denying training opportunities or promotions that are offered to non-transgender employees. Offering less favourable terms and conditions of employment would also be discriminatory.

Harassment occurs where someone engages in unwanted conduct related to another person’s transgender identity, which has the purpose or effect of violating that other person’s dignity or of creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’. Examples include making unwanted comments (including invasive questions about one’s gender identity), making abusive comments or isolation.

In November 2015, the Government Equalities Office issued guidance on creating a transgender-friendly workplace: The recruitment and retention of transgender staff. The guide notes that it will often be lack of awareness and understanding that leads to employers not adequately supporting their staff rather than any ill intention.

To be a trans-friendly employer, there are some straightforward things that can be done. A first step is to adopt an equal opportunities policy that encompasses transgender issues and to have a specific policy dealing with gender transitioning and how to support staff undergoing this. Employers should be sensitive to language, particularly pronouns (he, she etc) and respect terms that transgender people may wish to use to define themselves: some may not define themselves as either gender and prefer to use the term ‘non-binary’.

At the recruitment and selection process, job application forms can be amended so that instead of asking prospective employees to identify as ‘male’ or ‘female’, they include ‘other’ or ‘prefer not to say’ as options. Many prospective candidates will also look at the business website before applying, and a public commitment to an inclusive and diverse workforce (backed by practical action) will send the right message to potential candidates.

From the interview stage onwards, never assume a person’s gender based on appearance. Directly asking an employee or potential employee may cause offence; instead, employers should take the lead from the employee and try to create an environment of acceptance where the employee feels able to raise the subject themselves. Employers should also follow the lead of the employee when it comes to telling colleagues and clients, if at all.

Where an employee is undergoing physical or surgical gender reassignment procedures, employers should be accommodating of time off to attend medical appointments. As with any other medical procedure, this will work best if both parties can work together to balance business and personal needs. Employers should also be prepared for absences following surgery or hormone replacement treatment, and be mindful that the process will vary in length and complexity for each person.

All staff should be made aware of what is expected of them at induction and should be signposted to the company equal opportunities and non-discrimination policies.

Managers and HR employees should have sufficient training to deal with transgender issues. If corrective action is required, managers should intervene early before matters get out of hand. If matters cannot be resolved, the company disciplinary procedures should be followed in a fair and transparent manner.

Michelle Landy is a solicitor at Backhouse Solicitors