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Ensuring your Workplace Offers an Inclusive and Supporting Environment for Trans Employees

New research undertaken by ACAS, Supporting Trans Employees in the Workplace, published in August 2017, exposes that employers are failing in their efforts to understand the issues concerning their trans and intersex employees. 

Whilst transphobia and discrimination are extensively reported, little research has previously been conducted into the experiences of trans or intersex employees in the UK, which has larger implications for both managers and employees in the workplace. 

Legal obligations as an employer:

Gender Reassignment is one of nine protected characteristics covered by the Equality Act 2010 (EQA). The EQA provisions concerning gender reassignment discrimination, harassment and victimisation in the workplace protect a wide range of individuals during all stages of employment—from recruitment, training and promotions to disciplinary proceedings and dismissals. 

Under s 7(1) of EQA, 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”

It is important to note that medical intervention is not a legal requirement for transitioning, and as such medical supervision is not required for an individual to have the protected characteristic of gender reassignment. 

Furthermore, whilst the EQA requires that person should have at least proposed to undergo the process of gender reassignment, it does not stipulate that the proposal be binding. Individuals who start the process of gender reassignment but then decide to stop still have the protected characteristic of gender reassignment. 

Under the EQA, it is unlawful for an employer to:

Directly discriminate by treating an employee or a job application less favourably than others because of gender reassignment.

Indirectly discriminate by applying a provision, criterion, or practice (PCP) that disadvantages transsexual job applicants or employees without objective justification. 

• Subject a job application or an employee to harassment because of their gender reassignment, to harassment of sexual nature, or to less favourable treatment because they reject or submit to harassment. 

Victimise a job applicant or an employee because they have made, or intend to make, a discrimination complaint, or because they have done, or intend to do, other things in connection with the EQA. 

However, as the ACAS report rightly identifies, the EQA falls short in its inclusivity of intersex and non-binary individuals. There have been calls for changing the protected characteristic of “gender reassignment” to “gender identity”, but this has yet to come to fruition. 

From an employment law perspective, there are still some provisions that may allow intersex and non-binary individuals to bring claims against their employers, and it’s important as employers to be mindful of the unique situations of these individuals so that you are better equipped to assist them and promote an inclusive environment. 

Intersex individuals may possess biological characteristics of both sexes, an abnormality of sex chromosomes and/or a hormonal imbalance. At the time of birth, their medical appearance may be neither clearly male nor female resulting in a gender assignment which may differ from the gender identity of the individual in the future. 

Whilst being intersex is not specifically protected under the provisions of the EQA, an intersex individual could potentially identify as transgender to rely on protection under the EQA. 

Intersex individuals may well have additional medical needs or other correlated medical conditions and may be able to seek additional protection under the disability discrimination provisions in the EQA. 

Similarly, non-binary individuals, or individuals who regard themselves as neither male nor female, are not expressly protected by the EQA unless they identify as trans, in which case they may be able to qualify for protection. 

Moreover, whilst being transgender or transsexual is not a disability, where an individual (trans, intersex, non-binary) is diagnosed with the related conditions of gender dysphoria and/or gender identity disorder and the condition has as substantial and long-term adverse impact on their ability to carry out ordinary day-to-day activities, they may also be protected under the disability discrimination provisions of the EQA. 

What can you do as an employer to support your trans and intersex employees?

  • Regularly review and update organisational policies.
  • Providing training for line managers and recruiters within your organisation.
  • Review dress codes or uniform polices for any potential negative implications for trans staff.
  • Develop and maintain clear protocols for management of sensitive employee data to avoid any non-consensual disclosure, and do not retain or request any documentation that would not be required for legal or valid employment reasons.
  • Make equal opportunities within your organisation clear throughout the entirety of the recruitment process, with specific mention of trans and intersex issues and how they are managed. 
  • Provide individual toilet cubicles for all staff, or allow staff members to use the facilities that best align with their gender identity. 

If you require assistance in updating your policies and procedures or in supporting trans employees in the workplace please contact Samira Cakali at 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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