Gender identity issues have in recent years received a significant amount of attention. From an employment perspective, however, there have been very few cases on gender reassignment discrimination in the workplace, and the topic has received relatively little attention in terms of best practice – though the Government Equalities Office last month published guidance for employers on the recruitment and retention of transgender staff. In light of this guidance, and the prevalence of dialogue around gender identity issues, now is an opportune time for employers to pro-actively consider whether there is anything they could be doing to ensure that their workplace is best placed to recruit and retain transgender staff.

The starting point from a legal perspective is that it is unlawful to discriminate against an individual because of their gender reassignment. Under the Equality Act 2010 (the “Act”), a person has the protected characteristic of gender reassignment if the person 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“. This definition does not require there to be any medical treatment or supervision, and so an individual who has formed an intention to reassign their gender, and intends to live in the alternative gender without seeking medical advice, will be protected under the Act.

Putting aside the above legal obligations, there is a wealth of literature showing that diverse workforces are more productive and innovative than non-diverse workforces. There is therefore a strong business case for employers ensuring that their workplaces are as inclusive as possible in terms of engaging and retaining transgender employees. Some of the key issues which employers will need to consider are:

  • Recruitment – does the recruitment process contain any obstacles to recruiting a transgender candidate?
  • Equal opportunities and HR policies – do these promote inclusion, and adequately address transgender issues?
  • Documentation – do the organisation’s HR forms and IT systems allow individuals to use and be addressed by their preferred name and pronouns?
  • Records – how will historic records, which may risk inadvertently identifying an individual as transgender, be dealt with?
  • Management – are managers adequately trained to be able to discuss and agree support plans with individuals who are considering, or in the process of, transitioning?
  • Facilities – are facilities (including toilets and lockers) available to transgender employees in either their acquired gender, or on a gender neutral basis?

Of course, some employers may never need to consider the above in practice. However, the exercise of reviewing existing policies and procedures is valuable in terms of identifying any weakness therein, and ensuring that the organisation is able to engage with any transgender candidates and employees sensitively, knowledgably and with confidence.

Posted on 18/12/2015 in Legal Updates

Back to Knowledge