This summer, many businesses joined in with Pride Month, commemorating the Stonewall riots of 1969 and celebrating the achievements and contributions of the LGBT+ community. We saw businesses add the rainbow flag to their logo, join in Pride marches and showcase their diversity initiatives across social media.
While this was undoubtedly a positive step, Stonewall’s LGBT in Britain – Trans Report still found that half of trans people have hidden their identity at work for fear of discrimination, showing a gap between public declarations of inclusivity and the reality facing the UK’s trans workforce. To achieve inclusivity in the workplace, all employers need to understand what is protected in legislation and what this means for their workplace.
What is protected under legislation?
Gender reassignment is one of the nine protected characteristics covered by the Equality Act 2010. It is defined as an individual 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”. A person who is making a permanent change to reassign their gender is described in the Act as a transsexual person.
It’s important to note that this permanent change does not have to involve any medical supervision or intervention. If the individual chooses to live permanently as the opposite sex without surgery or hormonal treatment, they are still protected by the Act.
There is also the potential for disability discrimination, not for gender reassignment but where the individual has a diagnosed related condition of gender dysphoria or gender identity disorder and the condition has a long-term adverse effect on their ability to carry out their normal day to day activities.
What’s not protected?
An individual who does not identify as either ‘man’ or ‘woman’ and is non-binary would not be protected under the Equality Act 2010.
Similarly, the protection does not apply to a transvestite person – an individual who dresses as the opposite sex. It is worth noting that a transvestite may be protected if they are wrongly perceived to be undergoing gender reassignment.
What does this mean for employers?
Employers are liable for their own behaviour towards employees as well as harassment, bullying and discriminatory behaviour by their staff too. To ensure there is a culture that prevents this type of behaviour occurring, employers should put anti-harassment and bullying policies in place, alongside equality and diversity policies and potentially with a separate transgender policy.
Training staff is critical, as well as encouraging transgender employees to have open and honest conversations with their managers. This is particularly important when it comes to any practical adjustments you, or they, may want to consider making to the physical workplace.
Guidance from the Government Equalities Office on the recruitment and retention of transgender staff states that transgender staff should be able to use facilities of their identified gender. It is best practice to work with the individuals to identify a date from when they would like to start using those facilities, as well as agreeing the messaging they would like to communicate to their colleagues.
Taking steps to create an inclusive environment for all staff will ultimately ensure a happy and productive workforce, free from discrimination and claims against your business. Not taking steps is no longer an option.
Population estimates for the UK place the number of transgender individuals at 1.9 million or more. This is a significant proportion of our society, so managing transgender staff is something most employers will encounter in the future if they haven’t already.
Alex Kiernan is a partner at Loch Employment Law