Donald Trump sparked a recent public outcry in July this year when he announced his plans to reinstate a ban on transgender people joining the US military. In August, BBC2 aired a bold documentary about creating a gender-neutral classroom, and just last month Channel 4 confirmed their move to gender neutral toilets at their head office in London.
Gender equality is a topic that isn’t going anywhere.
Gender reassignment is one of the 9 protected characteristics. And the Equality Act protects a transsexual person, that is a person who proposes to go through, is going through or has gone through changing his or her gender from man to woman or vice versa.
The Equality Act applies regardless of whether a person has had any hormonal or surgical therapy. In essence, if someone chooses to live permanently as a member of the opposite sex then they are protected.
Those who are not explicitly covered, are known as non-binary identities. The term ‘non-binary’ covers those who prefer to remain flexible about their gender identity and not be described either as male or female. These individuals may go back and forth between fixed gender identities or have a feeling of having no gender, or gender overlap. However, it must be noted here, that although not explicitly covered by legislation, if a non-binary person is subject to discrimination because of the perception that they are transgender then they would be protected by the Act.
My suggestion; treat everyone fairly and you won’t go too far wrong.
The Gender Recognition Act 2004 allows a person, if they meet certain criteria, to apply for a certificate legally recognising their change of gender. When a certificate is granted, it means the person can then get a new birth certificate showing their affirmed gender. Employers should be aware, that they must not ask transsexual employees or job applicants whether they have a gender recognition certificate. If you want to know more about these certificates then go to: www.gov.uk/apply-gender-recognition-certificate/overview
Not many people are aware that employers who ‘out’ an employee or applicant as trans could be in breach of the Human Rights Act 1998. And apart from certain circumstances, it is a criminal offence to reveal, without the person’s permission, that they hold a gender recognition certificate or have applied for one. Perhaps something that you might want to share with your teams?
What can you do?
Educate and train your teams – this is often the biggest barrier to creating an inclusive workplace, because a lack of knowledge creates suspicion and fear. It is also important that anysenior leaders get on board with any training and inclusive initiatives in order to obtain buy-in.
Appoint a workplace rep – these employees should be trained to support the workforce (both those going through gender reassignment, but also their colleagues)
Understand legislation and terminology – make sure that your teams are aware of the Gender Reassignment Act and the Equality Act, but also that as a manager you are clear on legislation.
Review all of your existing policies and procedures – if you do not already have an existing gender reassignment policy then consider putting one in place.
What should a gender reassignment policy include?
Time off - as a rule of thumb, you should do whatever you do for other absences. If you enhance pay for other periods of leave then you should consider doing this for gender reassignment leave too
Support – detail what exactly this will include
Dress code – an employer should do all it can to allow an employee to follow the organisations dress code in a way which they feel matches their gender identity. Avoid splitting the dress code into male and female and instead ask staff to be presentable, clean and tidy.
Toilet and shower facilities - make the assumption that an employee knows how to choose facilities that match their gender identity, and state that as a business you agree that an employee choose what facilities they use. Transgender employees should never be told to use a disabled toilet.
Communication – detail how and when colleagues will be told about an individual’s gender reassignment (if at all). This should be up to the employee.
Confidential DBS check - the DBS do offer a confidential check for trans job applicants who do not want to reveal their previous gender to a prospective employer. The DBS has a sensitive applications helpline, and these details should be included in any policy that you have. An employer must also explain to a job applicant why a role requires a DBS check and where they can get independent advice.
For help with drafting a policy or any advice on managing gender issues in the workplace please get in touch.