Changing public perceptions and arguments about legal definitions make the issue of gender reassignment a minefield for HR directors and employers to navigate. Now change is afoot and the process of broadening protection for transgender people is underway in Parliament, but best practice is already ahead of the lawmakers. Article by Amanda Jones is a partner and head of employment, pensions and immigration with UK-wide law firm Maclay Murray & Spens LLP.
The difficulty faced by employers relates to the ongoing discussion about the extent to which gender can be said to be binary or something different. For instance, Facebook now offers more than 50 different gender options. With public attitudes to gender reassignment shifting, other organisations have also moved to accommodate their customers’ wish to define themselves in a wider variety of ways.
For example, HSBC recently introduced ten gender neutral titles for its customers to use. The move followed advice from their internal LGBT employee network on ways to improve their service to the transgender community. These titles will be applied across accounts, on correspondence, as well as bank cards. HSBC has also invested in training for staff to ensure that these improvements happen. It follows Metro Bank’s actions last year to allow non-binary customers and staff to identify as Mx when giving their title.
The current definition in employment law refers to those undergoing, intending to undergo, or having undergone gender reassignment. That process will involve someone living as a man or woman then transitioning to living as a member of the opposite sex. However, society and societal norms develop over time. Over recent years it has been suggested that the protection afforded by this legislation is too narrow. The concept of ‘gender’ has become controversial in itself, and there is an ongoing discussion about whether gender can be classified as binary.
Amid these changing perceptions, the UK Government launched an inquiry into protection afforded to transsexuals, and various recommendations were made including the ‘non-gendering’ of official records. The Gender Identity (Protected Characteristics) Bill was introduced, but stalled as Parliamentary business stopped for the general election. Meanwhile, the Scottish Government has indicated that it would consult on the law in this area by summer 2017 to ensure that Scotland is adopting international best practice.
But that is not to say that discrimination against transgender employees is currently a lawful option: Gender reassignment is a protected characteristic in the Equality Act 2010, although the narrow legal definition could exclude many transsexual people. The legislation has provided some challenges to HR directors, although few employers have ended up in court. Issues have tended to arise in relation to use of toilet or changing facilities. The potential for harassment of someone who is in the process of transitioning, or has transitioned is an issue, which should be firmly in the mind of HR directors who seek to support a member of staff through this process.
Even before the law changes, organisations are faced with the need to accommodate a variety of transgender people in the workforce, and to keep up with public opinion that their rights should be respected. HR directors, should, therefore, consider their organisations’ equal opportunities policies and statements and harassment provisions, to check that they provide adequate protection for all gender persuasions. Issues include how to record staff details and equality measures; healthcare policies; dress codes; and the availability and use of toilet and restroom facilities. HR directors must also consider what training will be required to make staff aware of the issues.
In terms of preparing for potential changes to the legislation governing gender reassignment, organisations could take their lead from US corporations. Although the current President has made comments which might suggest that protection will be rolled back in many areas for those in the LGBTQ community, the practice of many companies reflects a change in approach. The Corporate Equality Index analysed 887 major companies and found 93 percent had equal opportunities policies, which included gender identity, while 73 percent provided transgender-inclusive healthcare policies.
While state-level laws sometimes provide protection on the basis of gender identity, the bigger issue for employers seems to be aligning themselves with public perceptions. While the legal consequences of not keeping up with developments may not be significant for employers at present, many are at the forefront of changes. As ever, progressive companies see the option to be more inclusive as an opportunity to support their staff and align themselves with customers: there is no need to wait while the law catches up.
