Protecting transgender employees in the workplace

Alex Christen explains how businesses can best ensure they are creating a safe and inclusive workplace for transgender workers

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At the end of last year, the UK government announced it would introduce a new law to ban all conversion therapy. It then made a U-turn in April this year, deciding that the ban would only apply to gay, lesbian and bisexual people, but not transgender individuals, due to “legal complexity”. 

This comes at a time where this latest development has further intensified the debate over the exclusion of the transgender individuals in all aspects of society. And the public reaction to this mistreatment has bolstered the push for equality. So, what does this look like in the workplace? 

Employment is one of the most legally challenging and difficult areas to navigate for transgender people. Barriers in the workplace include bullying, isolation, pressure to conceal identity, difficulty changing names and pronouns, bathroom and changing facility access and dress codes, especially where a uniform is required. The government’s latest stance will only exacerbate such difficulties.  

What does the law say?

Legally, sex is binary. However, transgender individuals can apply for a Gender Recognition Certificate under the Gender Recognition Act 2004 to get legal recognition of their change of sex.

People undergoing the process of reassigning their sex will have the protected characteristic of gender reassignment under the Equality Act 2010 and the associated right not to be discriminated against, harassed, or victimised on this basis. 

To be protected from discrimination, the person does not need to have undergone any specific treatment or surgery to change their sex. The law recognises that the change between sexes is a personal process, not just a medical one. 

Importantly, if one employee discriminates or harasses another, the employer will be liable for such behaviour unless they can show they have taken reasonable steps to prevent it. 

What should employers be doing?

There is no legal obligation for employers to have specific measures in place, but to make the workplace a more inclusive and safer workplace environment for transgender employees, there are a few things employers can implement: 

  • Transgender protection policiespolicies should cover support for transitioning at work, consider paid time off for absence due to medical treatment, guidance on how to change your name and pronouns at work, and include a statement of commitment to supporting transgender individuals.

  • Training – company-wide training should cover what it means to be transgender, the correct terminology to use, and legal protections. Training is a good mechanism to encourage awareness and understanding.

  • Confidentiality, record keeping and data protection – confidentiality is crucial. It is the employee’s decision whether they want their gender history shared at work. Any records or data held about the employee that details their legal sex should be protected from all except those who strictly need to know. 

  • Facilities – it is best practice to have unisex bathroom facilities or to let your transgender staff know they are free to use their preferred facilities. It is also useful to have gender-neutral uniforms or allow uniforms to be tailored or changed based on gender presentation.

  • Discussion – employers should refrain from asking personal questions but could look at reaching out to employees to see how they think they could be better supported. These discussions can lead to a memorandum of understanding, helping the employer and employee agree a preferred approach on points such as who they want to communicate the change to and how, when the employee will start using a different name (if applicable) and what facilities they will use in the workplace.

Implementing some or all of these changes will help towards transgender employees feel safe and supported and will promote an understanding and inclusive workplace to protect transgender workers and their rights. 

Alex Christen is an employment lawyer at Capital Law