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Transgender discrimination in the workplace

Most employers are well-versed in their statutory obligations not to discriminate against their employees on the grounds of sex, religion or belief, and age (the more common examples of “protected characteristics”), for example, but what about an employee who is transgender? How does an employer stay the right side of the discrimination barrier?

Consideration must be given as to when discrimination on the grounds of transgender/gender reassignment can apply. Is it once that individual has completed the process of gender reassignment or at some earlier stage? What if that individual decides not to go through with the gender reassignment process? How can an employer balance the needs of the transgender individual and its other employees?

It is important to remember that, as with any issues of potential discrimination, an employer should be alert to scenarios that may lead to discrimination in the workplace and should handle any situation sensitively.

What is Transgender? 

The Oxford English Dictionary defines transgender as “the state or condition in which a person’s identity does not conform unambiguously to conventional ideas of male or female gender”.
In practice, transgender can encompass an entire range of circumstances. Transgender people may identify as male or female, or they may feel that neither label suits them. A person embarking on a transgender process may change their name and style of dress to suit the opposite sex. Other transgender individuals may transition fully to become a member of the opposite sex by undergoing medical treatment and surgery.

The Equality Act 2010

Transgender individuals are protected from discrimination under section 7 of the Equality Act 2010 (the Act). The Act offers protection as regards what the Act describes as “protected characteristics”. Section 4 defines gender reassignment as a protected characteristic. Particular care should be given to the wording of the Act which provides that: 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. 

Therefore discrimination can occur if an individual proposes to undergo reassigning their gender as well as once they have actually undergone the process. Employers must bear in mind that an individual continues to be protected from discrimination if they have embarked on the process of gender reassignment but then, for whatever reason, decide to abandon it.
Section 13 and section 19 of the Act protects a transgender individual against both direct and indirect discrimination.

The Gender Recognition Act 2004 

This Gender Recognition Act (GRA) provides transgender people with legal recognition in their acquired gender and is also relevant to discrimination in the work place. Section 22 provides that it is an offence for a person who has acquired protected information in an official capacity to disclose that information to any other person.

Employers should note this provision very carefully. Suppose an HR manager discloses to an interviewing manager the fact that a candidate selected for interview is actually transgender. Such a disclosure breaches the GRA. Crucially, failure to adhere to the requirements of section 22 incurs a criminal liability punishable by way of a fine up to £5,000.

Practical steps to avoid transgender discrimination in the workplace  

  1. Ensure there are rules, practices and policies in place that provide clear guidance about the acceptance and support of gender identity.
  1. Be clear that discrimination, harassment and victimisation on the grounds of gender reassignment will not be tolerated and that any such acts will result in disciplinary action.
  1. Confidentiality is key at all times. Maintain an open dialogue with the transgender individual and together agree timescales as to when that individual will be introduced in their new identity in the workplace.
  1. Ensure that you do not discriminate against an individual for absences related to gender reassignment. These absences must be treated in exactly the same way as if that individual was absent for illness, injury or some other equally substantial reason.
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Paul Kelly

Partner and Head of Employment
Employment Law
0113 227 9249
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Paul Kelly Blacks Solicitors LLP