An employer's guide to avoiding gender reassignment discrimination

The Equality Act 2010 provides that gender reassignment is one of the nine protected characteristics under the Act. 

As such it is unlawful to:

• Treat a job applicant or employee less favourably than another because of gender reassignment (direct discrimination). Direct discrimination will also cover situations where an employee is treated less favourably because they are perceived to be transgender or associates with someone who is transgender.
  
  
• Discriminate by treating an employee less favourably regarding absences from work because of gender reassignment. This will be direct discrimination and will apply if the transgender person has been treated less favourably in relation to absence from work because of gender reassignment than they would have been treated had they either: 
   
  • been absent because of sickness or injury; or
    
    
  • been absent for some other reason and it was not reasonable for it to do so  
    
    
• Indirectly discriminate against transgender job applicants or employees. Indirect discrimination takes place where a provision, criterion or practice (PCP) is applied which puts transgender people at a particular disadvantage when compared to another person and the transgender employee is put at that disadvantage. Indirect discrimination will be avoided if the employer is able to show that the PCP was a proportionate means of achieving a legitimate aim. 
   
• Subject a job applicant or employee to harassment related to gender reassignment or treat the employee less favourably because they submitted to or rejected harassment related to gender reassignment. Harassment takes places where there is “unwanted conduct of a sexual nature or unwanted conduct that is related to gender reassignment or sex” and has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. 
   
• Victimise a transgender job applicant or employee because they have made or intend to make a discrimination complaint or because they have done or intend to do things in connection with the Equality Act 2010.

What is gender reassignment?

A person has the protected characteristic of gender reassignment if they are “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.”  Such a person is a transgender person.

There is no need for the individual to undergo medical supervision or surgery at any point.

The definition covers individuals who commit to living permanently in their non-birth gender as opposed to transvestites. However, the Equality Act 2010 protects an employee from discrimination on the basis that they are perceived to have a protected characteristic. Therefore, if a cross-dresser is treated less favourably or harassed because they are perceived to be transgender, the employee will be able to claim discrimination.

Provided that the individual is 18 or over, a transgender person can apply for legal recognition of their acquired gender through the issue of a gender recognition certificate, although there is no obligation on an individual to do so. When a gender recognition certificate has been issued, the individual will become a member of their acquired gender, but only from the date that the certificate is issued and not for events prior to that.

Occupational requirements

There may be some limited circumstances where an employer can rely on an occupational requirement for an employee not to be a transsexual person. In order to rely on such a requirement, the employer would have to show that not being transgender is an occupational requirement, that the application of the requirement is a proportionate means of achieving a legitimate aim and the individual does not meet the requirement.

Where the employment is for the purposes of an organised religion, the employer can apply an occupational requirement for an employee not to be transgender, either to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions or a significant number of the religion’s followers.

One other category where an occupational requirement may apply is in relation to the armed forces.  If you need more information on this last category, please contact your HR Rely adviser.

How can we support transgender employees in the workplace?

Many employers may never have a transgender employee or job applicant. However, it is important for employers to understand their obligations under the Equality Act 2010 to avoid discriminating on grounds of gender reassignment, as much through ignorance as anything else, should they have an employee or job applicant who has the gender reassignment protected characteristic. The following sections address the various issues that an employer should have regard to.

The application process

To be supportive in the application process, an employer may wish to consider an amendment to the application form so that if titles such as Mr, Mrs, Miss are required, there is an option “other” so that an individual does not have to identify their gender. Consider also whether at this stage you need information about previous names as this too can be problematic for transgender applicants. If a job is subject to security vetting, then the Disclosure and Barring Service (DBS) do have a confidential DBS process for transgender applicants.

Job offers

Once an individual is offered a job it is usual for the employer to carry out identity and document checks. It is important that this is dealt with sensitively for transgender employees and consideration should be given to whether just one person in HR is nominated to deal with this and to ensure that the data is held securely. Revealing that someone is transgender could give rise to a discrimination claim but, where there is a gender recognition certificate in place, may also be a criminal offence.

Employees who are considering transitioning

Where an employee is considering transitioning, it is sensible for the employee to have a nominated point of contact and for a plan to be made with the employee covering things such as:

• What support the employee may need such as time off for medical treatment and other steps the employee may take as part of the transition;
• When and how the employee would wish to communicate the transition to work colleagues and possibly clients;
• When the employee intends to present in their new gender;
• Practical issues such as new ID badge, new uniform, business cards, work-based social media and documentation, e.g., pensions scheme, payroll etc.; and
• Use of facilities. The employee should be free to select the facilities appropriate to the gender that they present. Many employers have started to offer gender-neutral toilets.

Bullying and harassment

As part of any communication with work colleagues, assuming the employee agrees to such communication, it may present a useful opportunity to remind all employees of the organisation’s bullying and harassment policy. Harassment on grounds of gender reassignment is discriminatory. Harassment could be overt and intentional or it could simply arise as a result of the individual continuing to be referred to as their previous gender, even where this is not deliberate. An employer will be liable for discriminatory acts of its employees unless it has taken such steps as are reasonably practicable to prevent the discrimination.  

Data protection

Information about gender reassignment is sensitive data for the purposes of the Data Protection Act 1988. No information about an employee’s gender reassignment must be disclosed without the employee’s consent, therefore, it is sensible as part of any action plan to discuss with the employee who should be told and when and who may need to be told, e.g., insurance companies, private medical health providers, motor insurance providers etc., and to obtain the employee’s written consent to this. Records relating to the gender reassignment process should only be kept for as long as is necessary and then destroyed. Any records that are retained and relate to the employee’s previous gender should be kept secure with only specified staff having access to such information.

If you have a specific situation that you wish to obtain more advice on, please contact your HR Rely adviser. Download an example Gender Reassignment Policy.

In addition, the Government has produced Guidance for Employers on The Recruitment and Retention of transgender staff which is aimed at helping employers recruit and retain transgender employees.