Following our latest Early Bird webinar on the topic of transgender rights in the workplace, here are five key points for employers to consider.
Policies & documentation
Review policies and employment documentation to ensure they are fully inclusive, use appropriate language and recognise the rights of trans and non-binary staff. The language and terminology adopted by those in the LGBTQ+ community can be confusing or even intimidating for some, but Stonewall is a good source for up to date information on this.
Training of staff to raise awareness of trans and non-binary experiences and to equip managers in dealing with trans employees supportively and with sensitivity is recommended as part of your organisation’s equality, diversity and inclusion policy.
The process of transition and some of the practical issues that will arise in the workplace should form the basis of a sensitive and confidential discussion with the employee concerned. The GEO guidance (see links below) includes a template action plan for managers to use when supporting an employee through the transition process. Don’t forget that it is a criminal offence under the Gender Recognition Act 2004 for a person in an official capacity who has acquired protected information regarding an individual’s gender to disclose that information to another without consent.
Take the lead from the transitioning individual about what they are comfortable sharing, with whom, when and how. The process of gender transition is unique to every individual and assumptions should not be made about that person’s preferences or experience. They should be regularly consulted with by a designated manager or HR lead to ensure that they are being supported and that their needs are being met.
One of the issues that can cause some practical concerns is in relation to the use of changing facilities and toilets, and employers may find themselves in the middle of competing demands from their workforce. The GEO guidance states:
“A trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full-time basis they should be afforded the right to use the facilities appropriate to the acquired gender role.”
It will not be appropriate for an employer to require a trans employee to use the toilet facilities of their former gender and they should not be instructed to use the disabled facilities. This may present difficulties for employers who do not have space to create separate gender neutral facilities, particularly if female staff want to retain their own toilets.
Since our webinar, new guidance has been published by EHRC on the law in relation to single-sex spaces. It is aimed at organisations providing separate and single-sex services, which might include separate sex changing facilities or toilets. This is dealt with under specific parts of the Equality Act 2010 applicable to the provision of services. The guidance emphasises that such organisations should weigh up and balance the respective needs of, and impact on, different groups when providing single-sex services.
Rather than waiting for the issue to arise (if it hasn’t already), it would be advisable to consult with all staff to engage them in the question of how to make the workplace more inclusive and what can be done to make colleagues feel comfortable, and seek to agree a practical solution. One possible solution, if separate gender neutral facilities cannot be provided, is for existing toilet cubicles to be fully enclosed (ie with floor to ceiling walls/doors) to help maintain adequate privacy and alleviate concerns, particularly of female staff.
Here are links to some of the resources that we referenced in the session:
- EHRC Statutory Code of Practice
- EHRC Guidance
- Recruitment and retention of transgender staff (GEO guidance, 2015)
- Supporting Trans employees in the workplace (Acas research paper, 2017). Note: this expressly states that it is not intended as guidance from Acas on managing trans employees in the workplace. Previous Acas guidance on gender reassignment has been withdrawn and not reissued.
- Best practice guide and Q&A (Stonewall)
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2022.