Transgender Rights & Protection in the Workplace

Despite growing awareness of gender identities, there’s an ongoing debate on the legal rights and protections of the transgender community in the UK. For business owners, the controversy surrounding the Government's position on transgender issues has led to questions over workplace policies.

Trans or transgender are inclusive terms for people whose gender identity differs from what is typically associated with their sex assigned at birth. Importantly, a person doesn’t need to have undergone medical or surgical procedures to be classed and protected as transgender.

To help you create a trans-inclusive workplace, we look at the employment rights of transgender people and offer guidance on what's considered discrimination in UK law.

How are trans employees protected by law?

Transgender people are protected by two important pieces of legislation: the Gender Recognition Act 2004 and the Equality Act 2010. The Gender Recognition Act permits people to change their gender legally. In conjunction, the Equality Act prevents discrimination based on nine protected characteristics, one of which is gender reassignment.

The Equality Act applies in several settings, including the workplace. Those who don’t wish to undergo medical or surgical intervention but want to live permanently in a different gender are still protected by law. Employers should be aware that this legislation protects:

• Actual and prospective employees
• Previous employees
• Apprentices and people seeking or undertaking vocational training
• Contract workers
• Some self-employed people
• Actual and prospective partners in a partnership or LLP

It’s unlawful to refuse to work with someone who is undertaking or has undergone gender reassignment, even if the refusal is on the grounds of religious beliefs. As an employer, it's vital your company policies support the protection and inclusion of trans employees to create a safe, productive working environment for everyone.

Types of discrimination in the workplace

Discrimination can take a number of different forms in the workplace. The four main types of discrimination are covered by the Equality Act 2010. These are direct and indirect discrimination, harassment, and victimisation.

Direct discrimination

Direct discrimination is when someone is treated unfairly because of a protected characteristic, such as age, sex, or race. For example, if a person is overlooked for a promotion opportunity because they are transgender.

Indirect discrimination

Indirect discrimination occurs when policies or arrangements are less favourable to a certain protected characteristic, causing some employees to be treated differently. For example, some traditional dress codes could result in transgender people being disadvantaged in the workplace.

Harassment

Bullying isn't against the law, but harassment is. Harassment is acting in a way that violates another person's dignity or creates an intimidating, hostile, humiliating, or offensive environment for someone because they possess any protected characteristic.

Victimisation

Victimisation refers to the unfair treatment of someone because they've used their legal right to object to discrimination. This includes being unfair towards an employee if they're believed to have made a complaint, even if they haven't. If an employee informs you they've been harassed based on their gender reassignment, it would be unlawful to treat them differently in light of their claim.

Employees that don't have a protected characteristic can also face discrimination at work. This includes:

Discrimination by association

Discrimination by association happens if someone is treated badly because they have a friend, spouse, parent, or any other connection with someone who is transgender. For example, excluding a colleague from corporate events due to their partner being transgender.

Discrimination by perception

If someone is falsely believed to be transgender and faces discrimination as a result, this is called discrimination by perception. These situations can occur due to a lack of understanding of sexual and gender identities, which is why diversity and inclusion training is vital at work.

How to create a trans-inclusive workplace

Creating a trans-inclusive workplace means going further than preventing the discrimination and harassment of trans individuals. Employers should create an environment in which LGBTQ+ people can embrace their full identity with the support of those around them. This can be achieved by proactively incorporating diversity, inclusion, and equality policies and enforcing them across the business.

Here are some best practices for creating a trans-inclusive workplace.

1. Be transparent with employees

Reassure all employees that your organisation will support them as much as possible and is open to feedback that'll help improve HR strategies. If you're encouraging staff to speak openly, ensure line managers are sufficiently trained to advise their staff on how the company can assist throughout their transition process.

2. Maintain confidentiality

Any conversations regarding an individual's gender identity, transition plans, or concerns must be confidential. Employee details should never be shared between colleagues without permission, even if to garner support.

Communicate to your team the steps taken to keep their information confidential and outline the appropriate contacts within the company they can speak to privately.

3. Re-evaluate your facilities

Transgender employees should be encouraged to use the facilities of their affirmed gender. Switching to gender-neutral bathrooms is one way to show that your business is seeking to remove the stigma confronting transgender and non-binary people on a daily basis.

When assessing your facilities, use signage that reflects this stance and clearly communicate that bullying or harassment won’t be tolerated.

4. Arranging transition plans

You could consider creating a joint transition plan to help an employee through the transition. This must be a collaborative exercise, and should include when the employee intends to start the transition process and the anticipated end date.

Employees may need time off for medical appointments and any reasonable adjustments will require consideration. If a worker adopts a different name as part of their gender reassignment, compliance must be readjusted to account for these legal changes.

5. Raise awareness

It’s important to raise awareness among key stakeholders, including colleagues and clients. Consider hosting internal workshops and talks to increase understanding, discuss unconscious bias, and address any concerns in the workplace. Examine the importance of language with employees, such as chosen names and pronouns, and ensure these are used at all times.

Employers and their HR teams have a responsibility to create policies and practices that are trans-inclusive, such as those related to bathroom access, dress codes, and pronoun and name usage. These decisions send vital messages to trans employees about their value to the business and can have a significant impact on your staff's mental well-being and productivity. As more people are influenced by a business' ethics, you may find your actions have major consequences on your brand's appeal to future employees and prospective consumers.

About the author

Sasha Brine is a commercial and employment contract lawyer at LawBite, the UK’s top digital law platform offering expert, affordable legal advice for small businesses at 50% of the usual cost. Sasha has 12 years of experience working in the commercial and employment sector, providing legal advice to FTSE 100 organisations at a European level.