Blog: Trans-forming the workplace

Anne-Marie Boyle, Specialist Employment Lawyer at Menzies Law

Since 2014 it has been possible to select one of 71 (yes, 71) gender options when setting up your Facebook page (including ‘gender neutral’, ‘non-binary’, and ‘pan-gender’). Last week it was announced that at least 80 state schools across the UK, including 40 primaries, have adopted gender-neutral uniform policies, offering transgender equality by allowing girls to wear trousers and boys to wear skirts.  Some schools have gone even further and taken out all reference to gender in their policies and essentially allowing pupils to choose the uniform they feel most comfortable wearing. In the US, the Obama administration has now ordered all schools to allow children to use the toilet which they felt best corresponds with their gender identity.

I am confident that, where schools go, workplaces will surely follow.

As with many other areas of equality (sexism, racism, etc.), there has always been ‘trans-genderism’ within society.  Its incidences have not increased, it’s just much more awareness now.  The advent of specific employment protection legislation in 1999, for what was then called ‘gender reassignment’, has certainly helped in part.  (Protection against all forms of discrimination relating to ‘gender reassignment’ is nowadays enshrined in the Equality Act 2010.)  Campaigning and advice groups have also become more active and the rise of social media will undoubtedly have helped to reach people who would have struggled to get information in the past. These support organisations report huge increases in queries on ‘trans’ issues, with now female to male enquiries outnumbering male to female.

Even so, a trans employee within a business is still an area where few businesses have much experience. Only a relatively small percentage of the population identify as trans (I understand the current best guess is that it is significantly less than 1% of the UK population).

In January 2016, the Women and Equalities Commons Select Committee published its first report on transgender equality. The report made over 30 recommendations in a wide range of policy areas. It called on the Government to take action to ensure full equality for trans people and emphasised the need to update legislation, provide better services and improve confidence in the criminal justice system (where there have been some recent high profile suicides from trans male-to-female prisoners who were placed in the all-male prisons). It will be interesting to see how the Government responds to this.

Useful guidance

In addition, the Government has recently produced guidance for business who wish to make their organisations ‘trans-friendly’ (The recruitment and retention of transgender staff – a guide for employers’ Link). This guidance looks at the entire lifecycle of the employment relationship from recruitment through to termination. It helpfully points out that employers who actively promote a culture of dignity and respect are more likely not only to successfully recruit and retain trans staff but also other high quality employees who are looking to work with companies who can offer a more inclusive experience.

The Government’s guidance is also useful in giving information as to the different stages of transition: from someone who is still thinking about transitioning, those who are in the process of living as the other gender (with or without medical intervention), to those who have fully transitioned and have possibly even changed their gender of their birth certificates. Accordingly, it covers recruitment processes, induction, terms and conditions, policies, and handling more difficult issues such as confidentiality and harassment. The prevailing message is that it is useful to ensure that you have someone in your organisation who has some knowledge of trans issues.

In the workplace

In our experience, more requests for legal advice arise from businesses when an existing employee informs them that they are beginning the process of transitioning than where the employee presents as trans from day one. Questions that come up very quickly are things like what do we do about uniforms/dress code  and how do we manage the use of toilet/changing facilities? With some open communication with your trans employee and a heavy dose of sensitivity and common sense (in equal measures!), these can be resolved relatively quickly, we find.

However, trans issues are definitely not limited to just sorting out the toilets and dress codes. There will be issues such as when and how to communicate with staff and client and there may be requests for short-term absence for medical interventions. Unfortunately, you might have to deal with incidents of transphobia. Remember, for those trans employees who went through their transition a while ago, they will just want to move on and treat their old gender as history.

Occasionally we find that discrimination arises out of seemingly good intentions. If your organisation decides not to recruit a trans employee because you fear that your ‘unreconstructed work-force’ will bully that person and you wish to save them from that, this will amount to direct discrimination, irrespective of your motives.

For some business, making themselves trans-friendly will be down their list of priorities. However, for those organisations who might not be able to shout about how high their salaries are or their whizzy in-house gym, presenting your credentials as an inclusive employer can help you stand out from the crowd when it comes to attracting the right talent for your business.

I’m keen to help if you have any need for expert guidance here.

Anne-Marie Boyle
Senior Solicitor

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Anne-Marie Boyle, Specialist Employment Lawyer at Menzies Law