Supporting Employees and Gender Identity

June 13, 2019

We participated in Solicitors Chat on Twitter answering questions about how employers can support employees when it comes to expressing their gender identity.

Our Chartered Legal Executive, Lucy Watson, was on hand to provide some much needed guidance.

We’ve set out our answers out below.

1.What are The Equality Act 2010 and The Gender Recognition Act 2004 and how do they protect employees?

The Equality Act 2010 brought together all the separates acts dealing with discrimination on the grounds of one of the nine protected characteristics.

The Gender Recognition Act 2004 allows people who have gender dysphoria to change their legal gender.

The Acts protect people going through gender transition from being treated less favourable by others due to their gender transition.

2. When it comes to employees who are transitioning, or who are expressing their gender identity, what is classed as discrimination?

It is unlawful to discriminate against someone with the protected characteristic of gender reassignment. There are 6 types of discrimination:

• Direct – unnecessarily requiring someone not to be transsexual.
• Indirect – where transsexual people are particularly disadvantaged by a provision or some criteria which applies to everyone.
• By perception – where you think someone is transsexual, and you discriminate against them because of it, but they are not transsexual.
• By association – if you discriminate because of someone mixing with, or has an association with, transsexual people.
• Harassment – where you act in a way that violates the dignity of another person or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person because they are transsexual. There is protection from less favourable treatment of a worker because they submit to, or reject sexual harassment or harassment related to sex or gender reassignment.
• Victimisation – it is unlawful to discriminate against someone because they have used the provisions of the legislation or have helped someone else to do so.

3. What are the consequences of discriminating against an employee because of their expressed gender identity?

If an employer has discriminated against an employee who either intends to or is already transitioning they risk facing a claim for discrimination in the Employment Tribunal.

4. How can employers make sure they are fully equipped to support an employee expressing their gender identity or transitioning?

Employers need to ensure that they have policies in place that deal with gender reassignment inequality and diversity policies.

Proper standards of confidentiality should be maintain where the employee requests and that documents are kept up to date when someone obtains a gender recognition certificate, their employment records must be updated to reflect their expressed gender unless they relate to pension and insurance and old details need to be stored confidentiality.

5. How can employers make their workplace a safe and understanding environment for employees, no matter how they identify?

Employers can show a positive approach to employees by making sure they feel supported and are treated with respect no matter how they identify.

In some circumstances it may be appropriate to have a confidential memorandum of understanding in place. This is an agreement between the employer and employee which summarises a discussion about how communications on the change will take place, who will take action and when it will take place etc when an employee is transitioning.

For further assistance about gender identity within the workplace, contact our employment department on 01452 222340 to book an initial 45 minute consultation.