Employing a transgender person

Current estimates indicate that some 650,000 people are “likely to be gender incongruent to some degree”[Source]. Discrimination of trans people manifests in numerous forms, including alienation, hostile portrayal in the media, abuse and violence. These threats undermine trans people’s career opportunities, incomes, living standards, and physical and mental health [Source].

While an employer cannot protect an employee from all of these potential difficulties, it is key that they are fully aware of the provisions they must make in order to assist an employee in the workplace.

This article gives a brief overview of how the law seeks to give legal protection to trans persons in the workplace and practical guidance as to what steps an employer should take when employing a trans person.

Who has legal protection?

The Equality Act 2010 (EqA) gives legal protection to individuals who have the protected characteristic of gender reassignment.

The EqA states that a person has the protected characteristic 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.”

Accordingly, the individual must have at least proposed to undergo gender reassignment. However, it is clear that medical processes are not essential to transitioning and gender reassignment can be a personal process as well as a medical one. An employee does not need a gender recognition certificate to have legal protection under the EqA.

Whether a person has the protected characteristic of gender reassignment can at times be ambiguous. Let us consider the following scenario:

Robert has been working for XYZ Limited for 10 years. He works in IT support. Robert attends work on Monday morning. He tells his manager that he now wishes to be known as Claire.

Does Claire have the protected characteristic of gender reassignment? The answer is maybe.

XYZ Limited will need to establish whether Claire is intending to continue to live as a woman. The Equality and Human Rights Commission Code (EHRC Code) clarifies that the law seeks to protect those “who make a commitment… to live permanently in their non-birth gender“, but not transvestites or others who choose temporarily to adopt the appearance of the opposite gender.

XYZ Limited should also be mindful that Claire may be suffering from a disability as defined by the EqA. Indeed, gender dysphoria or gender identity disorder can constitute disabilities depending on the relevant circumstances.

Employers should proceed in a cautious manner and not make assumptions that the change is simply a temporary change in attitude. Whilst, the employee’s long term plans may inherently be a private and confidential matter, an employer may seek to discuss this with the employee to assist with providing necessary support as well as assisting in managing other employees.

Discrimination

The EqA makes it unlawful to:

1. discriminate by treating a person less favourably because they propose to undergo, are undergoing or have undergone a process of reassigning their sex. Less favourable treatment could include negative comments, access to benefits, promotion, training and dealing with absences from work because of gender reassignment. This is known as direct discrimination;
2. subject an employee to unwanted conduct which is related to gender reassignment and which has the purpose or effect of violating that employee’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that employee. Transphobic language, imagery or ‘jokes’ can violate a person’s dignity or create a hostile environment. The legal term for such conduct is harassment;
3. discriminate indirectly by applying a policy or practice (PCP) that disadvantages transgender job applicants or employees without objective justification. An attendance review policy may have an unfair impact on those taking absences from work because of gender reassignment.

Such conduct may also amount to a breach of the employee’s contract of employment.

Practical considerations

Informing management and colleagues

The very nature of gender reassignment can attract attention for a variety of reasons, including, its apparent rarity. Employers should discuss with the employee how to approach discussing their change with their colleagues. Some employees may wish to address the subject themselves whilst others may ask their managers to discuss this with employees.

Toilets

A practical question is what toilet the employee should be allowed to use. The law in this area is uncertain however the Government Equalities Office Guidance in November 2015 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 facilities for that gender.

This topic should be discussed with the employee and then other employees to ensure it is properly managed.

Absences because of gender reassignment

An employer commits direct gender reassignment discrimination if, in relation to a trans employee’s absence from work because of gender reassignment, it treats the employee less favourably than it would have done had the employee been absent because of sickness or injury, or it treats the employee less favourably than it would have done had the employee been absent for some other reason and it was not reasonable for it to do so.

The EHRC Code notes that the EqA 2010 does not define a minimum or maximum time which must be allowed for absence for treatment. The Code does not set time limits either, but suggests that it will be good practice for employers to discuss with a trans employee how much time he or she will need in relation to the gender reassignment process and accommodate those needs in accordance with their normal practice and procedures.

Accordingly, an employer cannot treat a trans employee less favourably than he would treat them for absence due to illness or injury. For example by paying them less than they would have received if they were off sick.

The EHRC code gives an example of a trans worker telling her boss that she intends to undergo gender reassignment and asks him if she can take an afternoon off as annual leave to attend counselling. The request is refused despite there being sufficient staff members on duty to cover for her absence. This could amount to gender reassignment discrimination.

Including these absences as part of an attendance review policy may also amount to indirect discrimination and an employer may wish to consider treating such absences in a different manner or apply the policy in a different manner.

Gender pay gap reporting

employers will soon have a duty to comply with their gender pay reporting obligations. There is no guidance as to whether a trans person’s data should reflect that of a man or a woman. We suggest a common sense approach should be utilised.

The occupational requirement

Most job roles are not gender specific. In rare occasions, an employer may have an occupational requirement, having regard to the nature or context of the work involved, that the employee is not a trans person or is not of a particular gender. An employer is well advised to seek legal advice before relying on this requirement.

Data protection

Information regarding an employee’s gender reassignment or gender history will constitute sensitive data under the Data Protection Act 1988. This can only be processed for certain specified reasons set out in that Act.

Employer liability for its employees

An employer may be liable for discriminatory actions of its employees. This is known as vicarious liability. An employer will need to demonstrate that it had taken all reasonable steps to prevent such actions taking place. Reasonable steps could include providing equal opportunities training to its employees and ensuring that adequate policies are in place with appropriate steps to assist employees in addressing discrimination in the workplace.