How would your company treat Lili Elbe (the Danish Girl)? - Protection and support for transgender staff

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Gary Henderson, Partner and Anita Wisby, Senior Associate consider the issues in this area

With the Danish Girl receiving plaudits, Caitlyn Jenner (American television personality and retired Olympian) attracting significant media attention, the public transition of Kellie Maloney (the boxing promoter) hitting the headlines and a top private school announcing that it is changing its traditional uniform to allow transgender pupils to be themselves, the public focus on the issues faced by transgender people has gradually increased. The report issued this month by the House of Commons Women and Equalities Committee (the “Report”) identifies that current estimates indicate that in the UK some 650,000 people are “likely to be gender incongruent to some degree” and highlights the many steps needed still to ensure full equality for trans people, making over 30 recommendations in a wide range of policy areas.

Protection under the Equality Act 2010 at work – is it enough?

The Equality Act 2010 (the "Act") includes "gender reassignment" as a protected characteristic, alongside race, sex, disability etc. A person has the protected characteristic of gender reassignment if the person 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”. There is no need for there to be a medical process or surgery (as many mistakenly believe) and the Equality and Human Rights Commission’s Statutory Code of Practice emphasises that under the Act ‘gender reassignment’ is a personal process, that is, moving away from one’s birth sex to the preferred gender, rather than a medical process.

Under the Act, it is unlawful for an employer to: discriminate directly by treating a job applicant or an employee less favourably than others because of gender reassignment; discriminate by treating an employee less favourably in relation to absence from work because of gender reassignment (compared to, for example, the treatment they would receive if they were absent due to injury or illness); or, indirectly discriminate, harass or victimise a job applicant or employee because of gender reassignment. However, the Report raises concerns that the terms "gender reassignment" and "transsexual" (which under the Act is a person who has the protected characteristic of gender reassignment) are outdated and misleading, and may not cover wider members of the trans community. The Report recommends that the Act should be amended, so that the protected characteristic is “gender identity”, making it clearer that protection is afforded to anyone who might experience discrimination because of their gender identity, including those individuals who do not identify as solely male or female.

Practical support and protection

So what actions can be taken by employers in the workplace to provide appropriate support and protection for members of the trans community? Government guidance was published at the end of November 2015 on the recruitment and retention of transgender staff. In that guidance the lack of awareness and understanding in relation to gender identity issues, which sometimes results in employers failing to support staff effectively, is highlighted. The guidance encourages employers to be aware that LGB (lesbian, gay and bisexual) issues are not necessarily the same as trans issues and that employers should talk about challenging transphobia, as well as homophobia and biphobia. Updating HR policies to ensure a company’s stance on discrimination in these areas is also covered, is therefore recommended.

Other issues an employer should also consider are:

(1) Application forms and data

The Gender Recognition Act 2004 (“GR Act”) enables a transsexual person who is at least 18 years old to apply for legal recognition of their required gender and for a gender recognition certificate (“GRC”) to be issued. Once a full GRC has been issued to a person, the GR Act provides that they become, for all purposes, a member of their acquired gender. Employers should not ask for a person’s GRC (if an employer requires proof of a person’s legal gender, then their (new) birth certificate should be sufficient confirmation) and it should never be a pre-condition for transitioning at work.

Employers should be aware that it is a criminal offence for a person who has acquired protected information (information which relates to a person’s application for a GRC or information which identifies a person with a GRC as transgender) in an official capacity (such as through HR processes) to disclose that information to any other person unlawfully.

Providing previous names may be problematic generally for transgender people, so where information is required it should be asked for in a sensitive way and it should be stored and treated in a secure manner.

A flexible range of titles that can be used by a candidate should be included on any application form.

Employers should be aware that there is a confidential disclosure and barring service (“DBS”) checking process specifically for trans applicants if a DBS certificate is required. Since employment often involves identity checks, there needs to be an awareness that sometimes the names on a transperson’s documentation will not tally. Ideally trans candidates will have access to a nominated HR person who will confidentially and sensitively deal with documentation.

(2) Commencement of work

It should be borne in mind that it is always any new starter’s decision about whether and with whom to share information. No employer should ever “out” an employee (this could also be a criminal offence - see above).

(3) How to support existing employees who wish to transition

ACAS in its guidance recommends amongst other matters, that employers can support trans people at work through:

• Good communication - providing clear statements about acceptance and support for different forms of gender identity and that discrimination because of gender reassignment is unlawful;
• Providing support for individuals undergoing gender transition by, for example, discussing with the person about how they would like their colleagues to be told; and
• Ensuring confidentiality, especially once an individual has changed to their new name and gender.

In relation to HR records and systems for an employee that transitions during their employment, thought will need to be given to what happens to the previous records including photographs, biographies etc on websites and historical personnel records. It is essential that trans employees are not “outed” due to inappropriate data emerging from any systems in the future therefore any data that is not essential should be deleted and destroyed.

Conclusion

Employers following the Government’s and ACAS guidance will assist the aims of the Report in seeking equality and, in the process, will not only protect themselves from potential litigation but will also benefit from the advantages that inclusive workplaces, with engaged and enthusiastic staff, are known to enjoy.