In terms of equality in the workplace and within wider society, few minority groups face more challenges of inadvertent or deliberate discrimination than the transgender community.
In this feature we will provide an overview of the protections provided to transgender employees and the challenges experienced by the trans community in the workplace through interview responses from transgender employees about their own experiences.
Trans or transgender are inclusive terms for people whose identity differs from what is typically associated with the sex they were assigned at birth. A transsexual person is someone who has proposed to undergo, is undergoing or has undergone gender reassignment.
Gender reassignment is the process of transitioning from one gender to another. This is a personal process, not a medical process. This means that someone does not need to have undergone surgery or be under any kind of medical supervision to be classed and protected as transgender. When an individual decides to live openly in their acquired gender they have made a social transition. There is no robust data on how many people in the UK identify as transgender, or use any other gender-identity descriptor, estimates vary considerably. In December 2011 the government shared the statistic that 88% of transgender employees experience discrimination or harassment in their workplace and the aim for recent legislation to remedy this.
Transgender and transsexual people are protected by two key pieces of legislation. The Equality Act 2010 outlaw’s discrimination in employment on the grounds of gender reassignment, and The Gender Recognition Act 2004 allows transsexuals to obtain a Gender Recognition Certificate to legally change their gender.
The Equality Act 2010 outlaw’s discrimination in employment and vocational training on the grounds of gender reassignment. Gender reassignment is one of the nine protected characteristics covered by the act. Protection applies to people proposing to undergo, are undergoing, or have undergone a process or part of a process to reassign their sex by changing their physiological or other attributes of their gender.
The legislation protects; actual and prospective employees, ex-employees, apprentices, some self-employed workers, contract workers, actual and prospective partners in a partnership or limited liability partnership and people seeking or undertaking vocational training.
It is unlawful to refuse to work with someone with the protected characteristic of gender reassignment, even if the refusal is on the grounds of religious belief.
These are the types of unlawful discrimination:
- Direct – unnecessarily requiring someone not to be transsexual.
- Indirect – where transsexual people are particularly disadvantaged by a provision or some criteria which applies to everyone.
- By perception – where you think someone is transsexual, and you discriminate against them because of it, but they are not transsexual.
- By association – if you discriminate because of someone mixing with, or has an association with, transsexual people.
- Harassment – where you act in a way that violates the dignity of another person or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person because they are transsexual. There is protection from less favourable treatment of a worker because they submit to, or reject sexual harassment or harassment related to sex or gender reassignment.
- Victimisation – it is unlawful to discriminate against someone because they have used the provisions of the legislation or have helped someone else to do so.
The Equality Act 2010 makes exceptions for certain actions, which would otherwise be discrimination on the grounds of gender reassignment – here are some examples but this is not a comprehensive list:
- An occupational requirement that requires someone not to be transsexual.
- When positive action is taken to help the employment of a transsexual person to achieve a more diverse workforce.
An organisation may indirectly discriminate if the discrimination is a proportionate means of achieving a legitimate aim (objectively justified). The Gender Recognition Act 2004 allows transsexual people to obtain a gender recognition certificate to change their gender legally. It is not necessary for the transsexual person to obtain legal recognition of their expressed gender to be protected by The Equality Act 2010.
Once a gender recognition certificate has been issued, a transsexual person is able to acquire a substitute birth certificate with the acquired gender, marry in the new gender or form a civil partnership with someone of the same gender under the Civil Partnership Act 200, and/or retire and receive a state pension at the age appropriate to the acquired gender.
You should only identify a person’s transsexual status if you have permission to do so. ‘Outing’ a person as transsexual is classed as direct discrimination under the Equality Act 2010 and could result in criminal charges under the Gender Recognition Act 2004. Disclosure of the fact that an employee has obtained a gender recognition certificate is a criminal act subject to a fine.
A person’s gender is usually assigned at birth based on the sex of the individual. However, a person may feel conflict between the gender they have been assigned and how they feel. As a result, a person may take steps to live as the gender which they identify with. This can happen at any point in their lives.
Transitioning is the process of moving from one gender to another and involves social, psychological, and emotional changes. The time this takes is different for every individual.
This is a daunting process involving many challenging steps and stages such as; changing name and pronouns socially, changing gender legally and changing details on official documents, e.g. driving license, ID, birth certificate, changing style of dress, adopting mannerisms consistent with expressed gender, hormone treatment, attendance at a gender identity clinic, voice therapy, hair removal, counselling, surgery, coming out with family and friends and coming out at work.
A supportive employer can greatly assist an employee by being understanding and accommodating in helping the employee as they take these changes, step by step. In this regard it is useful to look at some of these steps more closely:
Gender recognition certificate – If a person has a gender recognition certificate they can obtain a new birth certificate showing their acquired gender. An employer should be able to use the birth certificate for most administrative requirements relating to employment, in the same way that they would for other employees. It is unlawful to request the gender recognition certificate.
Indeed, if someone has reassigned their gender before joining you, you will have no need to know that they have a gender recognition certificate and have changed their gender. Again, people with gender recognition certificates may marry or have civil partnerships in their acquired gender, and may have a state pension appropriate to their gender identity.
Change of name
Many transgender people will not obtain a gender recognition certificate to permanently change their gender but will want to live with a different name to the one they were given at birth. A name can be changed using a statutory declaration or deed poll.
Confidentiality and data protection – A person’s gender status and transition history is confidential and must not be disclosed without the person’s permission, which should preferably be obtained in writing.
When someone obtains a gender recognition certificate, their employment records must be changed to reflect their expressed gender unless they relate to pension and insurance, and old details need to be stored confidentially.
When employment records are updated with the person’s new details, it will normally follow that changes are made to details, such as name badges, signs and email addresses. Proper standards of confidentiality should be maintained as with all HR documents.
Supporting transgender employees
Your organisation can show a positive approach to transgender employees by making sure that everyone is respectful and inclusive. Transgender employees need to know that they will be treated with respect. You should refer to gender reassignment inequality and diversity policies. In some instances a confidential memorandum of understanding may be sought. This is an agreement between the employer and an employee, which summarises discussions about how communications on the change will take place, who will take action and when it will take place and other matters, such as:
- Time off from work (where appropriate).
- Communication – where appropriate by stakeholder group, including peers, team, department, organisation, customers, etc.
- Equipment, e.g. door signs, name badges, email addresses, other forms of ID, electronic profiles, photographs.
- Personal changes – e.g. name change, dress change
- Use of facilities.
When an employee wishes to transition, there are some considerations for the business. The process can be very individual and this chart is not intended to be prescriptive. The typical main steps are:
- Employee advises manager that they wish to transition.
- Employee and manager agree communications, possibly with a memorandum of understanding.
- Manage any absence.
- Decide when the employee will transition at work and how, for example, starting to wear clothes of their expressed gender or changing their name.
- Ensure that everything is in place for the transition day – eg email address and agreed communications so that colleagues are aware. Update personnel records.
- If the employee leaves, make sure that the reference complies with legislation.
Some transgender employees in public-facing roles may want to change jobs, permanently or temporarily while they are in the process of reassigning their gender. Where an employee proposes a change to their role, managers should be as helpful as possible in facilitating this.
Absence from work
Employees who are undergoing gender reassignment are protected from less favourable treatment in relation to absence from work for this reason. Treatment of the person’s absence may not be less favourable than that they would receive for an absence due to illness or injury. This legislation does not specify a minimum or maximum amount of time for this absence.
It is advisable to ensure that any employee who has sickness absence is able to discuss any requirements or adjustments they may need, and this is no different for employees taking sickness absence for gender-reassignment purposes.
It is unlawful for you to instruct someone to discriminate against transsexual people on your behalf, for example, asking an employment agency to reject a transsexual person.
It is reasonable to ensure that transgender staff are able to wear clothes appropriate to their expressed gender identity when they are ready to do so. The employee may have a definite view on when and how they want to transition into new clothing and managers should accommodate this wherever possible.
Toilets and changing rooms
Managers must ensure that the employee can use facilities appropriate to their expressed gender identity. It may be appropriate to set a date when this will happen – the social transition date – and ensure that it is communicated so that relevant colleagues are not surprised. A transgender employee must be able to use the toilet or changing room of their expressed gender identity without fear of harassment. People should not be made to use unisex disabled toilets, unless they choose to do so, which may be a preference as a temporary measure during the transition period.
Measuring and monitoring
Transgender people generally prefer to identify as male or female rather than transgender. When monitoring, it is important not to ask questions that categorise gender identity as type of sexual orientation or gender.
While these regulations may seem daunting to an employer upon a first reading, they have been welcomed by many sections of British industry and according to government studies are considered to be working well in practice.
Beyond these regulations though it is interesting to see the human side of the issues at hand.
Gender transition is a challenging time for a person and continuing to work during this time can be difficult, particularly without the right support. Amber and Grace are two employees who have recently transitioned and have shared their first hand experiences in the interviews below:
Has your employer and your work colleagues been supportive towards you?
I have been very lucky. My employer and colleagues have known for some time that I was questioning my true gender and then supported my decision to transition. People didn’t always know what to say but they meant well. My employer committed to support me and consider any specific requests that I had.
My Manager wasn’t very supportive and asked me to make sure my work wasn’t affected. I wrote to my employer and explained that I identified as transgender and my plans to have surgery. I got a written reply from head office acknowledging my request and it confirmed I could have time off for surgery. I don’t feel there was any actual support from my manager and I felt ostracised by colleagues and eventually I resigned as I didn’t feel there would be genuine support from me upon a return to work following my transition. I felt that support was on paper only and that my line manager sought to avoid the issue entirely. I had resigned from a job previously following bullying about my feminine characteristics given that I was male. People sometimes hate what they don’t understand and I don’t think they realise the hurt that they cause.
Did you have challenges in terms of working with clients or customers?
This was the tough side of it for me. Transitioning was tough for me and I felt I had an ‘ugly duckling stage’ with hormones and adjusting outwardly to my new gender. I am in a public facing sales role and sometimes customers made unkind comments. There wasn’t that much that anyone can do to help me but I got through it. I am a male to female trans girl and after a tough couple of years I’m a lot more confident about how I look and how I can now ‘blend in’ with everyone’s expectations. Some people were very kind to me too which helped me a lot.
I had to resign from two jobs. This was in part due to insulting comments from customers and my employer declined to support me by tackling this. I felt powerless to deal with the discrimination I received so I left. I would have considered legal action against my employer but my priority was completing my transition to be female which I feel is my authentic self. Now I feel that I can work again.
Was your employer ready and willing to assist and support you?
Yes HR needed to check a few things in terms of what they could do to support me but the commitment was there and they were helpful. I know gentle discussions took place with line managers and my team to ensure that everyone knew support was important. My line manager was supportive and I’m sure it was a new challenge for him in work but his heart was in the right place.
No support was offered. I was told I could have time off for surgery but only after I put the request in writing.
What advice would you give to a transgender person in terms of the world of work, particularly whilst they transition?
A lot depends on your job and your employer and whether you have to face the public. Speak to human resources first if there is a HR Dept.
Just for a Manager to listen and understand and grant reasonable requests. Employees should be made to understand this is something they cannot discriminate against like with race or disability, religion or age etc.
Were any aspects of your transition in work easier than you expected?
It has become easier over time and I can say that in challenging times you find out who your friends are. I was lucky to make some great friends in work. I also know some amazing trans girls who have let little or nothing hold them back which has inspired me.
Some friends in work have been supportive and a couple of customers meant well. I made a friend for life in work who stood by me through thick and thin. His unintentional political incorrectness and heart of gold made we laugh during the difficult times.
Were any aspects of your transition harder than you anticipated?
I just felt particularly exposed in the world of work being in a public facing role during my overall transition.
I think the bad reactions of my managers were harder than I expected as I needed their help and I needed to work to survive financially. If I didn’t have kind friends to stay with I would have ended up homeless after resigning from the second job.
What suggestions would you make to employers and to the HR profession within British Industry in terms of supporting transgender employees?
Transgender people exist, we need and we deserve support. Some employers already do a great job with this. For me it is less about political correctness and what a policy says and more about listening and having an intention to help.
I would like more awareness of the trans community, acceptance and not to be discriminated against in work.
Do you feel optimistic about how transgender rights are developing for UK employees?
I think that the current political climate makes everyone a target. I feel that it’s become fashionable to hate and express anger at minority groups in the wake of the vote to leave Europe. Legislative protection is good but I feel it has become secondary as people feel that they have been given free reign to discriminate against people for any reason. I feel every individual has a part to play in supporting each other, but I am happy that people have some protection on the basis of gender, pregnancy, disability, race, belief etc. in the workplace. I am looking for work and I am feeling positive that I will eventually find a good employer.
Personally, I feel that people are gradually realising that supporting transgender people is the right thing to do and that we are all on a journey. There will always be bad people and sometimes they are bad people you work with, or people who you have to serve as customers. Haters will hate, for now, but maybe people will change their attitudes over time.