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Protecting transgender workers

Charles Wynn-Evans and Rebecca Turner - Dechert LLP.

Gender reassignment
Using terminology which is now outdated, “gender reassignment” is one of the “protected characteristics” covered by the Equality Act 2010 (EqA).  A person is treated as having this protected characteristic if they are proposing, undergoing, or [have] undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Such individuals are described in the EqA as transsexual. We will use these terms in this note when referring to the law. To be protected, the process does not need to involve medical supervision; it is sufficient that the individual is living permanently as a person of the opposite sex from their birth sex.

A longstanding concern has been whether the protection of the EqA extends to those who temporarily adopt the dress or appearance of the opposite gender,  intersex individuals who biologically have both male and female characteristics and who may have a gender assigned at birth which is different from the gender identity by which they live, and  those who are non-binary, whose gender identity is not clearly male or female or who are gender fluid. The accepted interpretation of the EqA had been that individuals who fall into one of these three groups are only protected by the EqA if they are also planning or undergoing gender reassignment and would not otherwise be protected by virtue of their specific gender identity.

People who are gender fluid and non-binary
The application of the EqA to those who are gender fluid or non-binary was considered in Taylor v Jaguar Land Rover Ltd. An employment tribunal upheld claims for harassment, direct discrimination and victimisation on the grounds of gender reassignment brought by an engineer at Jaguar Land Rover who identified as gender fluid, and who usually dressed in women’s clothing. The employee claimed that they were subjected to insults and abusive jokes, and had problems with the use of toilet facilities, and lack of managerial support.

The employment tribunal was satisfied that Parliament intended the EqA to protect those on a gender spectrum, concluding that a gender fluid or non-binary person falls within the definition of gender reassignment in the EqA. It found that the intention of the EqA was to protect a move away from a person’s birth sex. Such a move may be proposed but never gone through, it may be intermittent and it may take any form, including choosing to dress in a different way. It need not involve a medical process. An employee would be protected as soon as they have notified their employer of their proposal, even if they do not take a single further step. The employee was awarded £180,000 in compensation.

Disability discrimination

Separately, a trans worker may have a claim for disability discrimination if they have a physical or mental impairment which has a substantial and long term effect on their day to day activities. Depending on the particular circumstances, for example, mental health difficulties associated with gender dysphoria could constitute a disability for the purposes of the EqA.

Gender Recognition Certificates

Employers should also be aware of the Gender Recognition Act 2004 (GRA) which allows an individual to change their legally recognised gender by the issue of a Gender Recognition Certificate (GRC) and a new birth certificate issued in the gender in which they identify. It is, in most circumstances, an offence for a person who acquires knowledge of a GRC in an official capacity (such as during a recruitment process) to disclose it. Employees who have a GRC should be treated in accordance with their acquired gender. They should not be required to produce the GRC as evidence of their gender – their new birth certificate would be sufficient confirmation.

What protection does the law offer?
For those trans workers who are protected by the EqA, the protection extends to a wide range of individuals in the workplace including employees, workers, partners, and office holders. It also covers job applicants. Such individuals are protected at all stages of the working relationship from advertising and recruitment, through to terms and conditions offered, training, opportunities for promotion, dismissal and the giving of references.

In this context, unlawful discrimination prohibited under the EqA may take various forms:

Direct discrimination: treating someone less favourably because of that person’s gender reassignment. Differential treatment of someone absent from work to undergo gender reassignment compared with someone absent on sick leave could give rise to such a claim.

Indirect discrimination: a provision, criterion or practice which applies to everyone but adversely affects transsexual people more than others, and is not justified. Such a requirement would be discriminatory unless it could be justified. An example could be requiring employees to give the employer a copy of their birth certificate as proof of identity. This may be problematic for an employee who has transitioned and wants to keep this private.  If that employee has not applied for a new birth certificate following an application under the GRA, their birth certificate will show a different gender at birth from their affirmed gender. The employer is unlikely to be able to justify such a practice as it could instead ask for a number of different documents which a person may apply for in a different name without applying under the GRA, such as a driving licence or passport.

Discrimination by association: unlawful discrimination can include treating someone less favourably because he or she is associated with a person who has a protected characteristic.

Discrimination by perception: unlawful discrimination can include discriminating against someone who is perceived to have a protected characteristic, even if they do not actually have that protected characteristic. For example, this would cover discrimination against a person who cross dresses and who the discriminator wrongly assumes is undergoing gender reassignment.

Gender reassignment related harassment: is unwanted conduct of a sexual nature, or that is related to gender reassignment which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. For a trans person, this could include deliberately refusing to use a person’s preferred pronouns, bullying, or inappropriate comments or jokes.

Victimisation: means subjecting someone to a detriment because they have complained, or supported someone else’s complaint, about discrimination or harassment.

Occupational Requirements
In order to defend a discrimination claim related to gender reassignment, an employer may be able to rely on one of the occupational requirement exceptions in the EqA. i.e. in broad terms, if the employer can show that it was an occupational requirement for a person not to be transsexual. It is, however, difficult to envisage situations where this might apply in a typical workplace, other than in very specific situations relating to religion, or particular medical or counselling services. An example given in the EqA explanatory notes is of a counsellor working with female rape victims who is for legitimate reasons required not to be a transsexual person.

Guidance

There is a considerable amount of guidance available to employers to assist in supporting trans workers, protecting them from discrimination and harassment, and to reduce the risk of discrimination claims.

The key guidance of which employers should be aware is as follows:

  • The Equality Act 2010 Statutory Code of Practice published by the Equality and Human Rights Commission
  • Acas guidance: Gender reassignment discrimination; key points for the workplace
  • Government Equalities Office guidance on recruitment and retention of transgender employees.

Practical advice
As with all forms of discrimination in the workplace, an employer may be vicariously liable for the discriminatory acts of its staff, and it is a defence to a claim under the EqA for an employer to show that it took all reasonable steps to avoid the discrimination in question provided that these steps are sufficiently robust and current. It is therefore crucial for employers to have inclusive and appropriate policies, procedures and training programmes in place. In particular the terminology used in this area is particularly sensitive and evolving and there can be differences of opinion over what terms are appropriate. Employers should be aware of and sensitive to this issue and keep training and policies up to date. In relation to other specific areas:

Recruitment

  • Employers should ensure that information requested during the recruitment process is relevant to the job or required for the recruitment process.  For example, a title or a previous name should only be asked for where required (for example, where qualifications are being checked and are in a different name) and any relevant information should be treated as confidential and stored securely.
  • Staff involved in recruitment should be aware that trans people are not required to reveal their gender. They should not be asked if they have a GRC issued under the GRA. If individuals do choose to give the employer this information, staff should be aware that such information will be special category data under the General Data Protection Regulation (GDPR) and Data Protection Act 2018 and may only be processed in line with the employer’s obligations in relation to special category data. Staff should also be aware that it is a criminal offence under the GRA for a person who has acquired knowledge of an individual’s GRC in an official capacity to disclose it.
  • Assumptions should not be made about a candidate based on their appearance or the sound of their voice and, if it is necessary to ask, for example, for a title, the candidate should be asked how they would like to be addressed.
  • Employers should be aware that, where the job role requires a criminal records check through the Disclosure and Barring Service (DBS) – for example, in regulated roles in financial services, or the legal and accountancy professions –  DBS has a confidential checking service for trans applicants known as the sensitive applications route.

Training
Employers should ensure that their diversity and unconscious bias training covers trans issues and in particular that recruiters and managers have training so that they can be aware of potential issues encountered by trans workers and are able to provide appropriate support in the workplace.

Policies and procedures

  • Employers should audit their policies and procedures to ensure that they protect all employees with complex gender identities.
  • Employers should consider the use by trans employees of staff facilities such as toilets and gym changing rooms. In broad terms, the EHRC Code and the Acas guidance suggest that employees should be free to choose the most suitable facilities for their gender identity, and that trans individuals should not be told to use disabled facilities.  Employers should however be sensitive to balancing the needs of all protected groups.
  • Employers could consider other steps to support trans employees such as encouraging all staff to identify their preferred pronouns.
  • Employees who wish to take time off to undergo gender reassignment should be supported both during their absence and on their return to the workplace. It would usually be appropriate for an individual’s manager and HR to have a series of meetings with such a person to make sure that there is appropriate support in place at each stage of the process and that any issues are dealt with promptly, such as what information the employee would like the employer to communicate to colleagues. Employers should ensure that employees who are absent due to gender reassignment are still included in processes going on in the workplace, such as opportunities for promotion and training.
  • Employers must ensure that any policies where absence is a trigger for certain action to be taken are neutral where absence is related to gender reassignment. This may be an issue, for example, when scoring individuals for redundancy selection, or under a sickness absence or capability policy, if sanctions are triggered after a certain period of absence. In such cases, any time when an employee was absent due to their gender reassignment should be disregarded.

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