Avoiding gender reassignment discrimination in the workplace
Gender reassignment discrimination is perhaps the least talked about or understood form of discrimination in the workplace.
Yet gender reassignment issues are now breaking through thanks to the coverage of high-profile names, such as Caitlyn Jenner and Chelsea Manning.
And at home, evidence suggests that more young people than ever are being referred to the NHS because of transgender issues, with the rate quadrupling in five years.
Gender reassignment protection
Employers should know that the Equality Act 2010 protects anyone who proposes to start, starts or has completed a process to change his or her gender from discrimination.
This includes someone who is not currently undergoing medical supervision, or a transgender individual who decides they do not want to have any medical procedures.
Gender reassignment discrimination can come in four forms: direct and indirect discrimination, harassment and victimisation.
Any time off an individual needs because of gender reassignment issues, such as counselling, advice or surgery is protected under the Equality Act.
Employers have to be careful not to treat individuals less favourably because of such time off. For example, if the absences are counted as sick leave, then it could be discriminatory if they led to disciplinary procedures or affected an individual's selection for promotion, bonuses or redundancy.
Trust, communication, sensitivity
An inclusive workplace, in which managers lead by example on equality and diversity issues, will help to create a supportive environment for all forms of gender identity and expression.
Good communication with individuals will help employers handle their changing needs with sensitivity, understand how they'd like to be addressed by their colleagues, and how and when they would like to discuss their transition with them.
Building trust requires confidentiality. When agreed, all records should be updated to the new name and gender, and old ones should be retained only if necessary or deleted.
Acas publications and services
Acas has published Equality and discrimination: understand the basics [352kb] outlining what employers should do to comply with equality, as well as a guide about Discrimination: what to do if it happens [335kb]. Prevent discrimination: support equality [405kb] explains how they can promote workplace diversity.
Acas experts can visit your organisation and help you with issues related to bullying, harassment and discrimination, as well as your equality and diversity policy. See Equality and diversity: how Acas can help for more details.
Practical training is also available on Discrimination, Equality, diversity and the Equality Act 2010, Discipline and grievance, and Skills for supervisors.
For free, impartial advice and guidance visit Acas Helpline Online.
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The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of gender reassignment.
The Act's protected characteristic of gender reassignment currently has a specific meaning:
- it covers someone who proposes to go through, is going through or has gone through a process, or part of a process, to change his or her gender from man to woman or woman to man. A person making this change is described in the Act as a 'transsexual' person
- gender reassignment does not have to involve any medical supervision. For example, a person who chooses to reassign his or her gender and lives permanently as the opposite sex without having any hormonal or surgical therapy is protected
- genders outside of man (which includes woman transitioning to man) and woman (which includes man transitioning to woman) are not explicitly protected under UK law. They are the non-binary identities - for example, those who might identify as neither man nor woman. But, someone with a non-binary identity could be protected if they are discriminated against because they are thought to be considering, thought to be going through or thought to have gone through gender reassignment from man to woman or woman to man, regardless of whether this perception is correct or not.
To understand examples of gender reassignment discrimination in the workplace, how they can be effectively dealt with, how to reduce the chance of future discrimination, and best practice for employers and colleagues to also support employees with non-binary identities, view or download:
The Acas guide Gender reassignment discrimination: key points for the workplace [455kb]
You can also download:
Factsheet Gender reassignment discrimination employers tips [75kb]
Factsheet Gender reassignment discrimination myths [73kb]
Acas commissioned research Supporting trans employees in the workplace [707kb]
We have also produced a typology Gender identity typology [393kb] to help employers and employees understand the terminology in this area.
Also, it should be understood the word 'trans' is now commonly used as an umbrella term including both 'transsexual' people and people with non-binary identities. However, the term has no legal meaning.
Support a 'trans' employee
It is likely to be daunting for an employee to tell an employer that they are planning to reassign or are reassigning their gender, or about their 'trans' identity. The employer, or manager, who has been approached by the employee should take a series of steps including listening and agreeing to support the employee through gender reassignment or in their 'trans' identity.
Employers, managers and colleagues should be aware that no two gender reassignment situations or two 'trans' identities are likely to be exactly the same, so as much as possible they should:
- follow the employee's lead and agree with them what steps need to be taken before, during and after any transition to present in the gender identity they feel is correct for them, and
- schedule meetings to help reassure them along the way and deal with any unforeseen matters.
A 'transsexual' job applicant is not required to tell a prospective employer they have changed gender either before or if they get the job. Similarly, an applicant with one of the non-binary identities should not be expected to tell a prospective employer about their gender identity if they don't want to.
Adaptations at work to help 'trans' employees
The employee who is starting (or intending) to go through gender reassignment will in practice have no choice but to tell their employer if they are going to stay at that workplace. The employer will find it helpful if it has a policy covering matters such as:
- transitioning including support, time off and whether it is paid
- dress code
- use of toilet, changing and shower facilities
- changing the employee's personal records and other details such as their pass to get into work, pay slip and email address, and
- when and what colleagues can be told about a transition or gender identity, only if the employee agrees.
Managing absence from work because of gender reassignment
It is discriminatory to treat an employee, who is absent from work to undergo gender reassignment, worse than someone who is absent from work for another reason - for example, because they are ill, injured, recuperating, or having counselling or medical appointments.
Depending on an employer's policy for managing absence, it may wish to record absences because of gender reassignment. But, it should take great care if including them in 'managing absence triggers' - these are the number of days' absence when managers would consider warnings, and ultimately dismissal, unless attendance at work improves. An employer is likely to find it difficult to justify such an approach. For some aspects of gender reassignment, some employers also offer limited special leave, which may be paid or unpaid depending on policy.
Making a claim for gender reassignment discrimination
If an employee feels they been discriminated against, they will be able to bring a claim to an employment tribunal. However, it's best they talk to their employer before doing this to try to sort out the matter.
There is no longer a requirement to pay a fee to make a claim to the employment tribunal or the employment appeals tribunal. This was confirmed on July 26, 2017, by the Supreme Court which declared unlawful the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013.
Anyone who has previously paid fees to an employment tribunal or employment appeals tribunal is entitled to be reimbursed by the Government. Information on reimbursement should become available at GOV.UK - Employment Tribunal.
Through the Acas Helpline you can get advice on specific problems, and explore alternatives to an employment tribunal claim, such as mediation, where appropriate.
Protected characteristics video
This video introduces and explains the Equality Act's nine protected characteristics, the areas of life protected against discrimination. They include sex, race, religion and disability.