Transgender Day of Remembrance – what employers can do to make a difference

Changing the law

The Equality Act 2010 (“EA”) includes gender reassignment as one of the protected characteristics on the grounds of which people are protected against unlawful discrimination, harassment and victimisation.

The Gender Recognition Act 2004 (“GRA”) governs how trans people have their identity legally documented, by means of a gender recognition certificate. While ground-breaking for its time, the legislation is arguably now outdated and in need of reform. Currently, trans people are required to undergo a long and costly process to “prove” their gender identity. This includes supplying evidence of a medical diagnosis of gender dysphoria, evidence of having lived their “acquired gender” for two years and spousal consent.

Section 7 of the EA does not require individuals to have lived in their acquired gender for any period of time, nor does it require an individual to have undergone medical treatment in order to have the protected characteristic of gender reassignment. The protections afforded by the EA are therefore broader than those provided by the GRA, and it is widely thought that the latter should be amended to reflect this.

The Government received tens of thousands of responses to its recent consultation on reforming the GRA. We expect to wait some months before seeing any changes that are proposed in the official response in due course.

A widespread view in the LGBT+ community and allies is that the GRA should allow for an affirmative model of self-identification. This would prevent legal gender recognition being contingent on psychiatric or other medical diagnosis, which enforces the misconception that being trans means being psychologically ill. The World Health Organisation has this year moved "gender incongruence" out of its chapter of mental disorders and into its sexual health chapter, reflecting a general move away from pathologising trans identities.

How can employers support trans staff?

Significant progress has been made supporting the “L” and “G” in LGBT+, but the “T” and the “B” (see our previous article) are often overlooked. Consistently research has shown that employees who have to hide who they are and do not feel supported or represented within their employer organisation, will be less happy, less productive and more likely to leave – with a resulting cost for employers.

According to Stonewall, over half of trans employees have been so afraid of discrimination at work they have hidden the fact that they are LGBT+, while one in eight have been physically attacked by colleagues or customers at work. Trans people reported a range of attitudes from their managers, including hostility and bullying that had led them to self-harm, having suicidal thoughts or quitting their jobs.

Clearly it is vital that businesses better understand and support trans people in order to foster a working environment in which they are safe and happy. We set out below some practical considerations that employers should take into account:

• Informing colleagues. The very nature of gender reassignment can attract attention and any disclosure of trans identity or past should be controlled by the individual in question. They should decide who is told, when, what and under what circumstances - including other managers, colleagues, service-users and other relevant contacts. Section 22 of the GRA makes it a criminal offence for an employer to disclose an employee’s trans identity, except in certain specific circumstances.
• Absences. An employer must not treat a trans employee less favourably than it would have done had the employee been absent because of sickness or injury. To do so do so would amount to direct gender reassignment discrimination. Neither the Equality and Human Rights Commission (“EHRC”) Code nor the EA defines a minimum or maximum time for absence for treatment. The EHRC Code suggests it is good practice for employers to discuss with a trans employee how much time will be required and to accommodate their needs in accordance with their normal practice and procedures.
• A trans equality policy. Trans people should be protected from discrimination and harassment at all times, not just when they are transitioning. A comprehensive trans equality policy will help to reflect this. It should include a statement of commitment from the organisation, information on the legal protections that trans people have, and advice on support for an employee transitioning at work.
• Recruitment. Equal opportunities should be emphasised clearly throughout the recruitment process. Recruiters should reassure candidates who do disclose any information that this will be handled sensitively and offer any further support (if required). Flexibility around titles and genders that can be selected on application forms and visibility of policies that promote inclusion will demonstrate an organisation’s commitment to trans staff.
• Toilets, changing and shower facilities. Transgender employees must be able to use private facilities such as the toilet or changing room of their expressed gender identity without fear. Government Equalities Office guidance states that a trans person should be free to select the facilities appropriate to the gender in which they present, and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the according facilities. Employers can also promote inclusivity by making all or at least some facilities gender-neutral.
• Training, workplace champions and staff networks. It is important to educate employees about the issues surrounding gender identity through high-quality diversity and inclusion training. This will ensure they are aware of what being trans or in gender transition means for a colleague and how to act in a non-discriminatory way - for example, by giving employees the appropriate language to use.
  Workplace champions and staff networks that represent LGBT+ people can have a positive impact by “setting the tone” of an organisation, advocating for better inclusion and providing confidential peer support in a safe space for any staff member with questions about gender identity.
• Data protection. There appears to be a lacuna in the General Data Protection Regulation and corresponding Data Protection Act 2018, whereby a trans person’s data will not be covered by special data provisions as it is neither related to sex life/orientation nor health.

Notwithstanding this, a person’s gender status and transition history is confidential and should never be disclosed without their permission. Any personal data related to previous names or personal identifiers should be comprehensively updated, including any mentions on archived records to avoid accidental, non-consensual disclosure at a later date. Only a minimum number of key people should be able to access old records, and then only in specific circumstances.

A recent case illustrates the dangers of careless data management and the devastating impact this can have (De Souza v Primark). The claimant employee informed Primark that, while her birth name appeared on her passport and NI card, she would prefer to be called “Alexandra”. The company acknowledged this, but HR staff mistakenly changed her name on the IT system from Alexandra to her birth name, and her title from “Miss” to “Mr”. The situation then escalated – her badge was misspelt, her shift sheets were wrong and colleagues regularly and deliberately called her the wrong name. Staff also sprayed men’s perfume over her, made comments about her sexuality and called her “evil” and a “joke”.

The Employment Tribunal found that Primark failed to deal with the matter appropriately, which constituted direct gender reassignment discrimination and described it as “shocking” that Primark could not devise a way of keeping the claimant’s legal name off shift sheets and out of the knowledge of supervisors. At a very early stage, Primark was made aware of her status but took no steps to ensure a confidential system was put in place. The Tribunal said the injury to her feelings was “very severe indeed” and awarded her nearly £50,000.

Taking the ‘T’ of LGBT+ seriously

Employers might consider recognising Transgender Day of Remembrance as a way to acknowledge and support the transgender community and to use Transgender Awareness Week as an opportunity to address any shortcomings in their own workplace policies and processes.