Transgender Job Discrimination & Transgender Employee Rights in the Workplace

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Regarding equality in the workplace and wider society, few minority groups face more challenges of inadvertent or deliberate discrimination than trans workers.

In this feature, we will provide an overview of the protections provided to transgender employees and the challenges experienced by the transgender 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 got assigned at birth. A trans person is an individual that has proposed to undergo, is undergoing, or has undergone gender reassignment.

Gender reassignment is the process of transitioning from one gender to another. It is a personal process, not a medical one. It means that someone does not need to have undergone surgery or be under medical supervision to be classed and protected as transgender. Individuals who decide to live openly in their preferred gender have made a social transition. There is no robust data from government agencies on how many people in the UK identify as transgender or use any other gender-identity descriptor, and estimates vary considerably. In December 2011, the government shared the statistic that 88% of transgender individuals experience trans workplace discrimination or harassment in their workplace and the aim for recent legislation to remedy this.

Two critical pieces of legislation protect transgender individuals and trans people. The Equality Act 2010 outlaws employment discrimination on gender reassignment, and The Gender Recognition Act 2004 allows transgender individuals to legally obtain a Gender Recognition Certificate to change their gender.

The Equality Act 2010 outlaws 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 the physiological or other attributes of their gender.

The legislation protects; actual and prospective employees, ex-employees, apprentices, some self-employed workers, contract workers, existing and future partners in a partnership or limited liability partnership and people seeking or undertaking vocational training.

When hiring a transgender, employees have certain and it is unlawful to refuse to work with someone with the protected characteristic of gender reassignment, and they are legally protected because of transgender employment rights. They must receive fair and equal treatment, even if the refusal gets based on religious beliefs.

These are the types of unlawful transgender discrimination:

Direct – unnecessarily requiring someone not to be transgender individuals.

Indirect – where transgender individuals are disadvantaged by a provision or criteria that applies to everyone.

By perception – where you think someone is trans and commit transgender discrimination in the workplace against them because of it, but they are not trans.

By association – if you discriminate because of someone mixing with or associating with transgender employees.

Harassment – where you act in a way that violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person because they are trans workers. There is protection from the less favourable treatment of workers 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 specific 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 trans.
  • When positive action gets taken to help the employment of transgender employees to achieve a more diverse workforce.

An organisation may indirectly commit transgender employment discrimination if the discrimination is a proportionate means of achieving a legitimate aim (objectively justified). The Gender Recognition Act 2004 allows trans workers to obtain a gender recognition certificate to change their gender legally. A trans person doesn’t need the legal system to recognise their expressed gender to be protected by The Equality Act 2010.

Once a gender recognition certificate gets issued, trans employees can acquire a substitute birth certificate with the acquired gender. They can marry in the new gender or form a civil partnership with someone of the same gender under the Civil Partnership Act 2004 and retire and receive a state pension at the age-appropriate of the acquired gender.

You should only identify trans workers having trans status if you have permission. ‘Outing’ a person as trans is classed as direct discrimination under the Equality Act 2010 and could result in criminal charges under the Gender Recognition Act 2004. The disclosure that an employee has obtained a gender recognition certificate is a criminal act subject to a fine.

Transgender Discrimination and Being Transgender in the Workplace

A person’s gender usually gets assigned at birth based on the sex of the individual. However, a person may feel a conflict between the gender they got given and how they feel. As a result, a person may take steps to live as the gender they identify with, which can happen at any point in their lives.

Being transgender in the workplace and transitioning mean moving from one gender to another and involves social, psychological, and emotional changes. The time this takes is different for every individual.

It 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 the style of dress, adopting gender attributes consistent with expressed gender, hormone therapy, attendance at a gender identity clinic, voice therapy, hair removal, counselling, surgery, coming out with family and friends and coming out at work without fear of transgender discrimination in the workplace.

A supportive employer can significantly assist with transgender employment by being understanding and accommodating in helping trans workers as they make these changes, step by step. In this regard, it is helpful 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 transgender employees in the same way that they would for other employees. It is unlawful to request a gender recognition certificate.

Indeed, if someone has reassigned their gender before joining you, you will not 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.

Transgender Discrimination: Trans Workers and a Change of name

Many trans workers in the transgender community will not obtain a gender recognition certificate to change their gender permanently. Still, they will want to live everyday life with a different name to the one they got 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 are confidential and must not get disclosed without the person’s permission, which should preferably be obtained in writing.

When someone obtains a gender recognition certificate, you must change their identity documents and employment records to reflect their expressed gender unless they relate to pension and insurance. Old details need to be stored confidentially.

When employment records get updated with the trans employees’ new details, it will typically follow that changes get made to details, such as name badges, signs and email addresses. You should maintain proper standards of confidentiality as with all HR documents.

Transgender Discrimination: Supporting transgender employees

Your organisation can positively approach transgender employees by ensuring that everyone is respectful and inclusive and supports transgender rights in the workplace. Transgender employees need to know they will not be treated unfairly and won’t face transgender discrimination at work. You should refer to gender reassignment inequality and diversity policies. In some instances, a confidential memorandum of understanding may be sought. It 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, identification documents and other forms, electronic profiles, and photographs.
  • Personal changes – e.g. name change, dress change
  • Use of facilities.

When trans employees wish 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 on 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 – e.g. email address and agreed-on communications so that colleagues are aware—update personnel records.
  • If trans workers leave, make sure that the reference complies with legislation.

Trans Employment Discrimination: Transgender Workplace Laws and Changing jobs

Some transgender employees in public-facing roles may want to change jobs permanently or temporarily while reassigning their gender. When an employee proposes a change to their position, managers should be as helpful as possible in facilitating this and support transgender rights in the workplace.

Absence from work

For this reason, employees undergoing gender reassignment get protected from less favourable transgender workplace laws with absence from work. 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 with a sickness absence can discuss any requirements or adjustments they may need, which is no different for employees taking sickness absences for gender-reassignment purposes.

It is unlawful for you to instruct someone to commit trans employment discrimination against trans people on your behalf, for example, asking an employment agency to reject a trans person.

Transgender Workplace Issues and Changing Dress codes

It is reasonable to ensure that transgender workers can wear clothes appropriate to their preferred gender identity when they are ready to do so, as this is a personal process. Employees may have a definite view on when and how they want to transition into new clothing, and managers should accommodate this wherever possible without creating transgender workplace issues.

Toilets and Changing Rooms Being Transgender in the Workplace

Managers must ensure that being transgender in the workplace means an employee can use facilities appropriate to their expressed gender identity. It may be applicable to set a date when this will happen – the social transition date – and ensure that it gets communicated so that there is no unequal treatment and relevant colleagues are not surprised. Transgender rights in the workplace state that employees must not be denied access to the toilet or changing room of their expressed gender identity without fear of unlawful discrimination and harassment. People should not get 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.

Hiring Transgender Workers and Measuring and monitoring

People with transgender status in the community generally prefer to identify as male or female rather than trans man, trans woman or transgender. When monitoring, it is essential not to ask questions that categorise gender identity as a type of sexual orientation or gender.

While these regulations may seem daunting to an employer upon first reading, they were welcomed by many sections of British industry and, according to government studies, were considered to be working well in practice when hiring transgender workers and avoiding transgender employment discrimination.

Beyond these regulations, it is interesting to see the human side of the issues.

Gender transition is challenging for a person, and working during this time can be difficult, particularly without the proper support. Amber and Grace are two transgender employees who have recently transitioned and have shared their first-hand experiences with transgender rights in the workplace in the interviews below:

Have your employer and your work colleagues been supportive of you?

Amber:

I have been fortunate. 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 helping me and considered any specific requests I had.

Grace:

My manager wasn’t very supportive and asked me to ensure my work wasn’t affected. I wrote to my employer and explained my identity as transgender and my plans to have surgery. I got a written reply from head office acknowledging my request, confirming I could have time off for surgery. I didn’t feel any support from my manager, felt ostracised by colleagues, and experienced transgender workplace issues. Eventually, I resigned as I thought I would face discrimination and didn’t feel there would be genuine support for me upon returning to work following my transition. I felt that help was on paper only and that my line manager sought to avoid the issue entirely.  I had resigned from a job 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 they cause with workplace discrimination. Transgender people need support at work during these complex and challenging times.

Did you have challenges in terms of working with clients or customers?

Amber:

It was the most challenging part of it for me. Transitioning was tough for me, and I felt I had an ‘ugly duckling stage’ with hormone therapy and adjusting outwardly to my new gender. I am in a public-facing sales role, and sometimes as a trans person, customers would make unkind comments. There wasn’t much that anyone could do to help me from experiencing transgender discrimination at work from customers, 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, which helped me immensely.

Grace:

I had to resign from two jobs. It was partly due to transgender discrimination in the form of customer insulting comments, and I got treated unfairly, which my employer declined to support me in tackling. I felt powerless to deal with the transgender discrimination I received, so I left. I would have considered legal action against my employer for transgender discrimination in the workplace. Still, my priority was completing my transition to being female, which I feel is my authentic self. Now I think that I can work again, having undergone gender reassignment.

Was your employer ready and willing to assist and support you?

Amber:

Yes, HR needed to check a few things in terms of what they could do to support me as they had not had trans workers before, but the commitment was there, and they were helpful. I know gentle discussions took place with line managers and my team to ensure that there were no transgender workplace issues, and everyone knew support was necessary. My line manager was supportive, and I’m sure it was a new challenge for him at work, but his heart was in the right place.

Grace:

No support was offered. I was told I could have time off for surgery, but only after I wrote the request and felt workplace discrimination. Transgender people must be supported at work, and transgender adults must think that managers and colleagues at work understand.

What advice would you give to a transgender person in the world of work, notably whilst transitioning?

Amber:

A lot depends on your job and employer as to whether you may experience transgender equality or transgender job discrimination and whether you have to face the public. Speak to human resources first if there is an HR Dept.

Grace:

Just for a Manager to listen and understand and grant reasonable requests. Employees should be made to realise trans workers should not be discriminated against, just like someone of a different race or religion, disability or age, etc.

Were any aspects of your transition at work more straightforward than you expected?

Amber:

It has become easier over time, and I can say that you find out who your friends are in challenging times. I was lucky to make some great friends at work. I also know some fantastic transgender women who have let little or nothing hold them back, inspiring me as a transgender person in the general population.

Grace:

Some friends at 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 gold heart made us laugh during difficult times.

Were any aspects of your transition harder than you anticipated?

Amber:

I just felt particularly exposed to transgender discrimination in workplace situations being in a public-facing role during my overall transition and

Grace:

I think the terrible reactions of my managers and the transgender discrimination at work were more challenging than I expected, as I needed their help. 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 my second job.

What suggestions would you make to employers and the HR profession within British Industry regarding supporting transgender employees?

Amber:

Transgender people exist, we need them, and we deserve support. Some employers already do a great job in helping trans employees. For me, it is less about political correctness and what a policy says and more about listening and intending to support and improve trans rights.

Grace:

I would like more awareness of the transgender community, acceptance, and not to feel transgender discrimination in the workplace.

Do you feel optimistic about how transgender rights are developing for UK employees?

Amber:

I think that the current political climate makes everyone a target. I feel it’s become fashionable to hate and express anger at minority groups such as trans workers in the wake of the vote to leave Europe. Legislative protection is good, but it has become secondary as people feel they got free rein to discriminate against people for any reason. I think every individual has a part to play in supporting each other. Still, I am happy that people have some protection based on gender, pregnancy, disability, race, belief etc., in the workplace. I am looking for work and feel positive that I will eventually find a good employer to understand and support transgender employment rights.

Grace:

I feel that people gradually realise that supporting transgender people is the right thing to do and that we are all on a journey. There will always be bad people that won’t treat trans workers with the dignity and respect they deserve, and sometimes they are bad people you work with or people you have to serve as customers. Haters will hate for now, but maybe people will change their attitudes over time.