Although there have been significant developments over recent years in respect of transgender and gender identity rights, it is clear from statistics that trans individuals continue to encounter a higher risk of discrimination and conflict in the workplace.
‘Gender reassignment’ is one of the nine protected characteristics covered by the Equality Act 2010. This means it is unlawful to discriminate against an individual because of gender reassignment.
A person satisfies the definition 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”. The reference to ‘process’ is not limited to the medical process but includes the whole personal process and how it affects the mentality of the person going through the process. Therefore, an individual is protected whilst they are considering gender reassignment, even if ultimately they do not decide to transition.
The definition of ‘gender reassignment’ under discrimination law has recently been widened to include people who are ‘non-binary’ (those who identify neither as male or female) and ‘gender fluid’ (those whose gender identity is not fixed).
A particular challenge for employers is dealing with disagreements between employees relating to conflicting views over sex and gender. If an employee is treated unfavourably, discriminated against or harassed in the workplace by other employees, because of sex, gender reassignment or identity, the employer will be liable unless it can show that it has taken all ‘reasonable steps’ to prevent such conduct taking place.
It is important that employers take a sensitive and proactive approach to support staff and improve the way that trans and gender identity issues are managed in the workplace by promoting diversity and inclusion and preventing discrimination.
Steps employers can take to address these issues include:
- Establish a culture in which employees are aware of and understand what is acceptable behaviour.
- Update and review equal opportunities, harassment and bullying policies and make it clear that discrimination will not be tolerated within the workplace.
- Provide gender diversity and inclusion training to all managers and employees.
- Encourage open communication in respect of gender identity issues.
- Act promptly and sensitively to any concerns or allegations in relation to bullying, harassment or discrimination.
This subject is highly sensitive and employers should approach it in a thoughtful and considered manner. If you need any advice or assistance please contact our Employment Team 0345 646 0406 or fill in our online enquiry form to discuss this further.