There have been a number of developments in transgender and gender identity rights over recent years. Unfortunately, statistics continue to show that trans individuals encounter a higher risk of discrimination, prejudice and conflict within their working environment. Gender identity needs to be managed sensitively and correctly by businesses to ensure that appropriate support is provided to individuals.
Protection from discrimination
It is unlawful under the Equality Act 2010 to discriminate against someone because of a protected characteristic, which expressly includes ‘sex’ and ‘gender reassignment’. A person will satisfy the definition of gender reassignment if they are “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”.
It is important that employers understand that the reference to ‘process’ is not limited to the medical process of reassigning one’s gender; it includes the personal process and so it’s the mentality of the individual that is important. Further, a person can be protected even if they consider, but ultimately do not decide to, transition.
‘Non-binary’ and ‘gender fluid’
Recent employment case law expanded the definition of gender reassignment within the meaning of the Equality Act 2010 and widened the protection available.
In particular, case law has held that people who are ‘non-binary’ (individuals who identify neither as male or female), and ‘gender fluid’ (an individual whose gender identity is not fixed), can fall within the characteristic of ‘gender reassignment’. As such, employers must be mindful that the definition of gender reassignment is not fixed and, much like the construct of gender itself, operates on a wide spectrum.
Practical guidance for businesses
Employers need to take a proactive approach to support staff and improve the way they manage trans and gender identity considerations in the workplace. If an employee discriminates against or harasses another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. Employers therefore also need to consider how they protect staff from any harassment.
A particular area of difficulty is how to manage any fallout between employees relating to conflicting views over sex and gender. Recent case law has found that an employee’s gender-critical belief is equally capable of being protected under the Equality Act 2010 within the definition of the ‘religion or belief’ protected characteristic. Employers will often need to draw a distinction between taking action because of the employee’s belief, which is prohibited, and because of the way that they manifested or expressed their belief, which may be justified. For example, if they have done so inappropriately or in a way that is offensive, the employer may still be able to take disciplinary action.
The best way to manage these issues is to set clear expectations for staff, which should include the following as a starting point:
1. Update policies
Organisations should undertake a review of their internal equal opportunities and anti-harassment and bullying policies to ensure they are up to date. Policies should state that discrimination of any kind, including any form related to gender identity, will not be tolerated.
Employers should provide gender identity, diversity and inclusion training to all employees (including managers and HR representatives). This training should help to improve understanding of gender identity, including guidance on acceptable and appropriate use of pronouns and terminology. This will, in turn, facilitate supportive and sensitive channels of communication by providing managers and HR representatives with the confidence to address concerns when they are raised.
Employers need to appreciate the spectrum of gender identity and acknowledge that no two scenarios will be the same. Some individuals may be reluctant to tell their managers or work colleagues that they are proposing to undergo, are undergoing or have undergone gender reassignment. The reassurance that, if an individual does raise any concerns, they will not be judged or degraded can therefore aid open communication channels. Managers and HR representatives should be readily available to discuss concerns at the employee’s pace and on their own terms.
4. Act promptly
If an employee does raise concerns or allegations of discrimination, businesses must act promptly to ensure that this is dealt with effectively and attempt to reach a resolution. Any allegations of discrimination must be handled extremely seriously and all individuals impacted should be spoken with, and necessary action taken, as a result.
Adam Wheal and Sarah Hayes are employment law experts at Paris Smith