Workplace transgender and non-binary friendly policies

From a legal perspective, gender reassignment is a ‘protected characteristic’ under the EqA 2010. A person is protected if they propose to undergo, are undergoing or have undergone a process (or part of a process) of gender reassignment by changing physiological or other attributes of sex.

It is unlawful to subject a person to the following conduct based on those characteristics: direct discrimination, indirect discrimination, harassment, or victimisation.

Considering the above, employers have a legal responsibility to ensure that the working environment is safe for all trans staff. This responsibility extends vicariously to the conduct of other staff. For example, if one employee discriminates against or harasses another, the employer is liable unless it has taken reasonable steps to prevent that conduct from taking place. Note that the offending employee may also be liable.

Where an employee is transitioning, you may need to make some adjustments to support them, below are some examples of circumstances that may need to be considered.

• Working schedule: Consider how the person’s schedule / shift patterns tie in with work deadlines and key changes that may affect the person throughout their transition, i.e., ensuring key people who provide support (team leaders) are available at the right time.

• Absence from work: Ensure that absences for medical reasons around the transitioning process are not treated less favourably than time off for sickness, injury or absence. If this is mishandled there could be a risk of indirect discrimination.

• Records: Be live to what needs to be changed and updated, and what happens to “old” records. This could include updating the organisation’s website, or ensuring DBS certificates, payroll, and national insurance details are adjusted. Where other employees or internal stakeholders need to be made aware, ensure informed consent is obtained first. Remember to remain compliant with other data protection obligations.

• Use of facilities: When considering facilities, an employer should look to solutions that add choices and not remove them, e.g. adding gender neutral facilities, this will be a simple way to alleviate the risk of discriminating against any employee on the basis of their gender. The aim of the employer’s approach should be to create an environment where everyone can use the facilities.

• Uniform: Consider the impact of a uniform policy or dress code on trans employees. Where an employer has a more rigid uniform policy according to gender, this may need to be reviewed and updated. There is a risk that such policies will be a provision, criterion or practice that amount to indirect discrimination. This risk could be reduced by allowing employees to follow the organisation's dress code in a way they feel matches their gender identity or by allowing transitioning employees the freedom to dress according to their chosen gender (a reasonable adjustment).

An employer should aim to ensure employees understand the importance of respecting chosen names and pronouns when communicating as language is powerful and can have a harmful effect if used carelessly. Raising awareness amongst employees of the below conduct will go a long way to avoid accusation of offence, bullying or harassment.

• Deadnaming: Calling someone by their birth name after they have changed their name, often associated with transgender and non-binary people who have changed their name.
• Misgendering: Referring to someone using a word, especially a pronoun or a form of address, which does not correctly reflect the gender with which they identify. People who experience being misgendered are commonly those from the transgender, non-binary and gender-fluid communities.

Clearly defining what transphobia is, will ensure employees are clear on the standards for professional conduct and behaviour. Ultimately, employees should be aware of what is acceptable versus unacceptable.

The CIPD provides a succinct definition of transphobia:

•    expressing emotional disgust/revulsion towards transgender people
•    expressing irrational fears about transgender people
•    wanting to inflict emotional or physical harm/violence on transgender people
•    deliberate behaviour aimed at disrespecting a transgender person’s identity, such as deliberate and persistent misgendering
•    denying or restricting a transgender person’s rights, such as the right to have their private life respected.

Other employees may feel that a manifestation of their philosophical beliefs or religion gives them the right to express opposing views about gender. Although both belief and religion are protected characteristics under the EqA 2010, and all employees should feel they are able to voice their beliefs in a work appropriate way, employees should be aware that this does not mean employees can engage in conduct which amounts to discriminatory conduct or harassment. The following points should be emphasised:

• inappropriate behaviour may constitute unlawful harassment if it violates dignity or creates an intimidatory, hostile, degrading, humiliating or offensive environment, regardless if it was intentional or not;
• conduct such as deliberately misgendering someone or refusing to use correct pronouns may be unlawful regardless of beliefs or religion.

Employees should understand that where someone has contentious immutable beliefs about gender, which has the potential to cause offence to trans co-workers, they should ensure their conduct and language is never hostile, degrading, humiliating or offensive. There should be a general consensus to treat their colleagues with respect.

There needs to be a robust and consistent approach to incidents or accusations of workplace conflict and harassment. Having a measured approach, that can be escalated if needed, will allow for more practical and effective solutions. 

Where a trans employee has raised a concern and it is at the lower end of the severity scale, it may be a good idea to provide mediation and informally discuss the impact of the behaviour of the person complained of, i.e., discuss the impact of accidental misgendering.

Where the conduct complained of is more serious, the approach in managing the complaint should follow a full and fair procedure in line with the ACAS Code of Practice on disciplinary and grievance procedures. The seriousness of this should be clearly stated in the policy.

When creating a policy, employers should seek and include the view of experts (e.g., the CIPD guidance). The policy should also be as practical as possible, including useful examples that focuses on different scenarios, whilst being easy to update (terminology and legislation may change); the aim is to ensure staff know how they should act depending on what situation they are in.

Furthermore, it should be aimed at specific people in the organisation. i.e., guidance for heads of department should be different from guidance for other staff. To ensure the policy remains effective, there should be an audit strategy. Where there is a need to update the policy, organisations should be consulted for guidance. From a content perspective, consider the above points when drafting a policy.

Contact our employment team if you need specific help with creating a transgender workplace policy.