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Transgender Employment Rights

All businesses should treat their customers with respect, courtesy, and in a way which doesn’t breach their human rights or discriminate against them. However it’s also important businesses are inclusive employers.

Whilst having a diverse workforce has been shown to boost productivity, it’s also essential if an employer wishes to follow good employment practices and not fall foul of equality law.

How can you ensure inclusivity?

One example of how to ensure inclusivity is to familiarise yourself with the terminology associated with people in the trans/transgender community, and transgender employment rights.

Transgender employment rights

“Trans” and “Transgender” are umbrella terms which include transsexual as well as non-binary individuals (for example, those who don’t identify as a particular gender or have a fluid gender identity).

Transsexual means a person who has transitioned, or is transitioning, or has partly transitioned (this doesn’t have to be medically) to live as the opposite gender.

Under current equality legislation transsexuals do have protection from discrimination. However the legislation doesn’t expressly protect other trans people.

Despite this it’s best practice to treat those employees in the same manner.

You must not treat employees or job applicants who you suspect, or know, are going through gender reassignment less favourably (either directly or indirectly) than those who aren’t.

Therefore you must not refuse a promotion to an employee because they are transsexual despite them being the best candidate. Nor should you implement a policy which indirectly negatively affects those employees or job applicants who are transsexual (e.g. demanding to see the Birth Certificates of all employees).

Such a policy could cause a trans employee to be “outed” and therefore suffer a disadvantage.

If you fall foul of the law you risk claims for discrimination being brought against you, as well as loss of faith in your business within the trans and wider community.

How can you support your trans employees?

A few examples of how you can support a trans employee include:

  • Ensure that your employees are not disrespectful or abusive towards a trans employee. Bearing in mind that you could be liable for the discriminatory actions your employees, it’s best practice to have a Conduct Policy, applicable to all staff, which states that employees should treat all colleagues with respect at all times. It’s also worth you providing equality training to all of your staff.
  • Take care when referring to a trans employee. This includes using pronouns or the trans employee’s name if this has changed too. You should check how the trans employee wishes to be addressed and ensure your HR team changes documentation such as work ID badges etc. to match.
  • Be careful not to “out” a trans employee. You should respect the trust given to you if an employee chooses to disclose that they are trans/transgender, or transitioning. A trans employee is not obliged to tell you about their gender reassignment.
  • Allow trans employees to follow company dress codes in a way in which makes them feel comfortable.
  • Don’t penalise an employee because they’ve had time off work to have reassignment surgery or treatment, and
  • Don’t tell trans employees that they have to use a particular toilet or shower facility. You should put a policy in place (and communicate it to all employees) which emphasises that the employer supports employees to decide which facilities best match their gender identity.

If you would like more information about transgender employment rights, please contact a member of our Employment Law team today.

 

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Paul Kelly

Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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Paul Kelly Blacks Solicitors LLP