Anyone who has followed the news over recent weeks would no doubt have been aware of the controversy over the Scottish Parliament’s passing of the Gender Recognition (Reform) Bill and Westminster’s decision to withhold Royal Assent for it. 

The Welsh parliament has now also revealed plans to make it easier for people to change gender. 

Gender identity therefore (and, in particular, gender reassignment) is a very real and current issue. As employment lawyers, we have seen an increased demand for advice on gender identity issues and associated workplace training and policies. Employers recognise that their managers and staff need to be aware of gender identity and trans issues and that now, more than ever, they need to take steps to ensure staff have the skills and confidence to manage gender identity issues appropriately, sensitively and confidently.

In this article, Sheilah Cummins explains what we mean by gender identity and gender reassignment in the workplace, highlights some of the risks and issues which may arise and provides advice as to the steps employers can take to manage and mitigate those risks. 

‘Gender identity’ versus ‘Gender Reassignment’

The terms ‘gender identity’ and ‘gender reassignment’ are often used interchangeably. However, from a legal perspective, there are some key differences. Whilst these differences may, to all intents and purposes, be theoretical it is nonetheless important to explain the distinction.

When we talk about “gender identity”, we are talking about how a person identifies with their gender. For instance, they could take: a ‘binary’ approach (i.e. they identify as either male or female); a ‘non-binary’ approach (identify as both male and female or neither male nor female); as gender ‘fluid’ (someone who may identify as male one day and female the next); or as gender ‘neutral’ (referring to themselves with gender-neutral pronouns).  

The definitions of the above terms are not fixed – and they may mean slightly different things depending on whom you ask. However, these are the definitions for which there appears to be some consensus. 

However, it is specifically characteristic of ‘gender reassignment’ (not “gender identity”) that is afforded protection under the Equality Act 2010 (the Act). S.7 of the Act defines ‘gender reassignment’ as when someone is “…proposing to undergo, is undergoing or has undergone a process…for the purpose of reassigning [their] sex…”. 

 This covers a broad spectrum of the transgender journey. It means that those undergoing gender reassignment are protected from discrimination, victimisation and harassment from the very beginning of their journey (e.g when they may have just made the decision to change their sex), to the very end, when they have undergone medical treatment. 

 The protection applies regardless of whether or not an individual has applied for, or received, a Gender Recognition Certificate (GRC). However, once they have been issued with a GRC, the individual’s gender becomes “for all purposes” their chosen gender. This means that they can apply for a birth certificate and passport in their chosen gender, marry someone of the opposite gender to their chosen gender and benefit from all protections and benefits associated with that gender. 

What does this mean for the Employers? 

Most employers are already very familiar with their obligations to prevent discrimination during the employment life-cycle – from recruitment of a candidate to training and promotion opportunities to termination of employment and beyond. 

Protected characteristics such as race, gender and age particularly, are apparent and easy to identify. Someone with the protected characteristic of ‘gender reassignment’, though, may not be so obvious. 

A candidate might walk through the door having just begun their gender reassignment journey; another may simply feel more comfortable identifying as non-binary – but with no intention of undergoing gender reassignment. Only one of those candidates has the protected characteristic of ‘gender reassignment’ – but to make assumptions about which one could be risky.

For this reason, employers must be alert and alive to the issue. Job advertisements and job descriptions should be gender-neutral; interviewers should focus on the skills and experience required for the job and ask all candidates how they wish to be addressed. If DBS checks are required for the role (and which might inadvertently reveal that a candidate is not presenting in the gender with which they were assigned at birth) this should be clear on the job spec, and candidates allowed to use the sensitive application's route for DBS checks. 

Employers will also need to put in place processes and procedures to ensure all information about a person’s gender identity is kept secure and confidential. Inadvertently ‘outing’ someone as transgender, without their consent, is a criminal offence and staff should be properly trained to ensure they are alive to this issue. 

Equally important is the workplace culture and environment within which a candidate will be working. Removing titles from name badges, doors and desks (for example), allowing a trans person to dress in a way that matches their gender identity and using the facilities that of their chosen gender are all ways in which employers can ensure staff feel welcome, comfortable and included. 

Reviewing existing policies and procedures to ensure they do not directly discriminate against transgender people is essential. If disciplinary processes are triggered by, or redundancy selection is based (in whole or part) on, absence levels, these may need to be adjusted to make allowances for those taking time off to undergo gender reassignment treatment. 

Transitioning at work

Key to reducing the risk of workplace discrimination is to ensure you have appropriate policies and procedures in place which clarify the behaviours expected from staff and which set out the steps for managers to take if an employee starts the transition process.

This will no doubt be a difficult subject for an employee to broach with their employer. Preparing and training managers in how to respond should ensure that the matter is handled with sensitivity.  

There will not be a “one size fits all” approach and flexibility will be crucial. Discussion should be had with the employee around the proposed timescales for transition; what time off they will need; who they wish to be told, when and how; which records need to be changed etc. Regular catch-ups should be scheduled to ensure the employee continues to feel supported but also to identify any potential issues (bullying/harassment) so that steps can be taken, at an early stage, to nip them in the bud. 

 Indeed, with the proposed reintroduction of employer liability for third-party harassment and new legislation being enacted to reduce sexual harassment in the workplace, employers are required to take proactive, rather than reactive, measures to reduce discrimination and harassment. Getting ahead of the curve by taking positive steps now to address these issues will be essential. 

We can help

Prettys’ Employment Team are experienced advisers in gender identity and discrimination issues. We can assist your business by: 

• providing bespoke training to your staff and managers;
• drafting gender identity policies and reviewing associated policies and procedures; and
• reviewing and amending third-party contracts to reduce the risk of staff harassment and introduce termination provisions in the event of a breach

If you would like to know more, please click on contact us and we will be happy to help you.