Transgender rights in the workplace – what employers need to know
The issue of recognition of, and the rights of, transgender persons, remains a contentious one, and one likely to be a hot topic during the current election campaign. But what is the current legal position, and what do employers need to be aware of?
Who counts as being transgender?
The cornerstone of legal recognition for transgender persons in Scotland is the Gender Recognition Act 2004. This Act allows individuals to obtain a Gender Recognition Certificate (GRC), which legally affirms their gender identity. A GRC enables a person to change their gender on legal documents, such as birth certificates, and marriage certificates.
Scottish parliament legislation to make it easier to obtain a GRC, and introduce the ability to self-identify, has of course been a high profile and contentious topic over the last few years, with the legislation ultimately not being implemented.
The key issue for employers however is that protection of transgender persons is not limited to those with a GRC. The protections contained in the Equality Act 2010 relating to the protected characteristic of gender reassignment apply to someone who:
“Is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”
It is not necessary to have undergone any specific treatment or surgery, far less to have obtained a GRC.
An employment tribunal case which we reported on last year concluded that the protection extends to non-binary or genderfluid persons.
What are the legal protections?
The Equality Act 2010 provides protection against discrimination based on various protected characteristics, including gender reassignment (as above). Under the Act, transgender employees are protected from discrimination, harassment, and victimisation in the workplace.
Direct Discrimination: Occurs when an employee is treated less favourably due to the characteristic of gender reassignment status. For example, refusing to hire or promote someone because they are transgender or non-binary. It is not possible for direct discrimination to be justified.
Indirect Discrimination: Arises when a workplace policy or practice disproportionately disadvantages transgender employees. For instance, enforcing a dress code that does not accommodate gender expression. Such policies can potentially be objectively justified by an employer.
Harassment: Involves unwanted conduct related to gender reassignment that creates an intimidating, hostile, or offensive environment. This can include inappropriate comments or jokes about a person’s transgender status, or potentially jokes about other transgender persons such as those in the media.
Victimisation: Happens when an employee is treated badly because they have made or supported a complaint of discrimination related to gender reassignment.
As ever, the key issue about liability for discrimination, is that the employer is legally liable for the discriminatory acts of its employees (such as unlawful “banter” on the factory floor), even if it was unaware of, and would never have permitted, such conduct. The one exception is where the employer has taken all reasonable steps to prevent such acts occurring. This would include diversity training, setting a good example, being approachable and sensitive in relation to any complaints etc.
Addressing the risks and ensuring best practice
Policy and training
Employers should develop and implement policies that explicitly prohibit discrimination and harassment based on gender identity and expression. These policies should be publicised appropriately.
Regular training for all employees, including management, about transgender and wider diversity issues is essential to potentially enable the employer to defend an employment tribunal claim, but beyond that can help to foster a respectful and supportive work environment where all staff are able to achieve their potential.
Employers should encourage an open and respectful dialogue about gender identity in the workplace. Employers may be entitled to insist that employees do not wilfully “misgender” or “deadname” a colleague. Deliberately doing so could amount to unlawful discrimination or harassment.
Single-Sex Facilities
The government’s equalities office has stated that a transgender person should be free to use the facilities appropriate to the gender in which they present. This is a difficult issue, though, with potential privacy issues for other staff.
An employer should try to create an environment where everybody can use the facilities they feel comfortable in and best meet their needs. A transgender person should not be told to use disabled facilities.
CIPD guidance suggests that employers should approach discussions on the use of facilities in a spirit of building understanding and respect, and with compassion and empathy. CIPD suggest that offering at least some gender-neutral toilets and changing facilities mitigates the risk of creating a barrier for transgender people.
Supporting Transitioning Employees
Employers should provide support to employees who are transitioning, respecting their privacy and wishes regarding disclosure of their gender identity.
Employment records should be updated as appropriate to reflect the correct name and gender of a transitioning employee.
Employers must maintain confidentiality regarding an employee’s transgender status and it is sensible to discuss with the transitioning employee, what colleagues should be told, and when.
Clashes with other employees
Numerous ET and appeal decisions have confirmed that gender-critical beliefs (beliefs that sex is immutable, cannot be changed, and is distinct from gender identity) are protected under the Equality Act. A particularly difficult task for an employer is to balance the interests of transgender persons with those who have gender-critical beliefs, given the potential for conflict.
It is clear that disciplining an employee for the reasonable expression of gender critical beliefs, is likely to be unlawful discrimination, but where the expression of those beliefs is unreasonable, then action may have to be taken in order to protect transgender persons from conduct which could amount to harassment.
Conclusion
This is a particularly difficult minefield for employers but businesses should seek to take the lead in ensuring that transgender employees are respected, supported, and protected in the workplace.
By understanding and fulfilling their legal obligations, creating inclusive policies, and creating a culture of acceptance, employers can contribute to a positive and supportive work environment. These are complex issues, however – for further advice on this topic please contact our team of employment law experts.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
