The Equality Act 2010 has protected trans employees since its introduction of the legislation back in 2010.
Whilst there is guidance available via several national public bodies, it remains a topic that can leave employers not knowing how best to approach it in the workplace.
What do we mean by Trans Employees?
Before we consider how trans and gender equality can be supported at work, it is important to understand what is meant by the terms trans and gender equality.
Trans or transgender is an umbrella term for somebody who experiences gender incongruence, gender diversity or gender dysphoria, meaning they do not align to the sex they were assigned at birth.
The term trans is not restricted to individuals who intend to undergo or are undergoing or have undergone gender reassignment. The term is also used by:
- People who do not identify to the gender they were assigned at birth.
- Someone who is planning, or has had medical interventions.
- Someone who does not plan or has not had medical interventions.
- Someone who is non binary.
Gender equality means that people of all genders have equal rights and opportunities. In work this means, access to the same opportunities, whether this be for promotion and career progression, equal pay, and benefits to those in comparable roles with similar responsibilities as well as opportunities for training.
Why should employers ensure that there is trans and gender equality in the workplace?
Building a workplace culture, inclusive of trans and gender equality is both morally important and legally responsible.
It is about treating employees with dignity and respect and recognising that people have many great things in common, as well as having many great differences that sets them apart. All of which is vital in ensuring that the organisation becomes a great place to work as well as becoming an employer of choice for future recruits.
Having a diverse workplace culture brings different ideas, views, backgrounds and experiences which enhances creativity, building an inclusive workplace culture will also safeguard the organisation from potential employment tribunal claims.
Employers have a legal obligation under the Equality Act 2010 to protect individuals from unfair treatment and discrimination and to promote fairness and equality. Not only does this legal protection apply to employees, but it also applies to job applicants as well as other types of worker, such as casual/seasonal, agency staff.
Equal Opportunities and Diversity Policies have been commonplace in organisations for many years. Having these key policies, that are well communicated, readily available and trained out across the workforce, is essential for a defence against claims of discrimination and unfair treatment.
These policies help to ensure that all employees, regardless of age, disability, gender reassignment, marital or civil partnership, pregnancy or maternity, race, religion or philosophical belief, sex or sexual orientation are treated in the same way in recruitment, induction, employment, pay and benefits, training and career development and in their terms and conditions of employment.
However, more recently, organisations are now recognising the need to have a separate policy supporting transgender at work. This is because we are seeing more people becoming confident in how they identify themselves and being more open about this.
Having a separate policy to support trans and gender equality not only helps to reinforce the need for equal treatment and fairness, but it can provide practical guidance, especially those who are to undergo gender reassignment. A policy can also serve as a line management tool to guide managers in this area.
If you are considering introducing a policy in your workplace, then you can download our Trans and Gender Equality Policy from our HR Document Shop here.
People can identify themselves in many ways, but there will always be a common approach in which an employer can provide support, as we set out below.
Information relating to an employee’s sexual orientation and health is special category data under the UK GDPR and Data Protection Act 2018. This means that it needs more protection than other types of personal data due to its sensitivity.
Since gender reassignment would be health data, information about an employee’s transition would also be included in this category of data.
It is less clear under the legislation as to whether gender identity would also be classed as special category data, although considering the data that would be held, it would seem reasonable to be included. We would certainly recommend handling this data as if it was.
The Information Commissioner’s Office provides specific guidance on the processing of special category data:
- Processing is lawful, fair and transparent
- Complies with all other UK GDPR requirements
- Article 6 of the UKGDPR must be established in order to process the data lawfully (guidance further on)
- Processing the data can only occur if one of the conditions of Article 9 of the UKGDPR are met
- Establish if an appropriate policy document is required for the management of special category data
- A Data Protection Impact Assessment must be carried out for data processing of special category data, as the data is likely to be considered high risk
- Keep records, including documenting the categories of data, including records of how you have considered the risks affect your data protection obligations such as data minimisation, security, transparency.
It should be recognised that employers, and in particular line managers are not medically trained and may not have experience of supporting trans equality in the workplace. In addition to any specific training the organisation provides, it should be encouraged that managers, as well as employees access legitimate and reputable external information.
The following external sources of support may be of help:
- The Equality and Human Rights Commission (EHRC)
- The beaumont society
- Equality and Advisory Support Service (EASS)
- Gender Identity Research and Education Society (GIRES)
- Gender Trust
- Inclusive employers
- Tavistock and Portman NHS Foundation Trust
Trans Equality at Work: Webinar
On Thursday 11th August we presented a live webinar which focused more on the subject and importance of trans equality in the workplace. You can watch the recording here.