acas gender reassignment discrimination key points for the workplace

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Gender Reassignment Discrimination: Key Points for the Workplace

The Equality Act 2010 makes it unlawful to discriminate against someone or treat them unfairly because of gender reassignment. This guidance contains advice for employers to ensure they comply with the law in this regard. As well as an overview of the specific meaning of this protected characteristic, the guidance suggests ways in which employers can support trans workers and advises on adaptations to assist those undergoing gender reassignment and ways of managing any time off work this requires. See http://www.acas.org.uk/media/pdf/f/3/Gender_reassignment_discrimination.pdf.

Acas also has a video on the nine protected characteristics safeguarded by the Equality Act. See http://webarchive.nationalarchives.gov.uk/video/acasorguk/prkUa-bEYkE.

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Trans employees lack support

ACAS has published new guidance to help managers understand and reduce the chances of gender reassignment discrimination occurring at work.

Gender Reassignment Discrimination: Key Points for the Workplace  comes on the back of ACAS-commissioned research which shows a general lack of knowledge on the part of employers about trans issues:

• Many aren’t up to speed with the law on gender reassignment discrimination, which protects some trans employees from unfair treatment at work
• It’s often left to the victims of transphobia themselves to inform their managers about the details of the Equalities Act
• Trans people not covered by the Act are even more at risk of being treated unfairly because employers have even less understanding of their experiences

Among other things, the new guidance covers:

• how to use the correct terminology while discussing trans issues
• information on which trans identities are protected by the Equality Act and which are not
• best practice on how to treat all trans employees, including issues such as recruitment, confidentiality and line manager support

Further useful resources on gender reassignment can be accessed via the dedicated section on the ACAS website .

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Nicola Bowman

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Supporting trans employees in the workplace

New Acas research reveals many employers demonstrate little understanding of trans and intersex issues

Over recent years increased media focus on trans people's experiences has helped bring gender identity issues into the limelight. It is also clear that public attitudes are beginning to change for the better with events like Pride London and Sparkle in Manchester moving from strength to strength.

However, new research from Acas – Managing Gender Identity in the workplace – reveals that the workplace is lagging behind, with many employers demonstrating little understanding of trans and intersex issues.

Trans employees often bear full responsibility for encouraging employers to embed inclusive practices. Transphobia, bullying and negative treatment are major issues: a 2016 survey by Totaljobs found that 60% of trans employees have experienced transphobia in the workplace, and that 36% had left a job because of it.

So how can organisations better support trans employees?

1. Educate the workforce

The biggest barrier to an inclusive workplace identified by our research was a lack of knowledge among employers of trans and intersex issues. This gap was particularly evident in relation to people who do not identify with binary male or female gender roles; for example those who are gender non-conforming, gender non-binary or gender-fluid.

Furthermore, to prevent trans employees from being overlooked in the wider LGBT community employers must be more mindful of them. Often the T is the part of the acronym people know the least about, and coupled with low disclosure rates among trans staff this can lead to confusion between gender identity and sexual orientation.

This lack of understanding often results in insufficient confidence among line managers to effectively support trans or intersex employees, and organisations may lack initiatives to drive forward and embed fully inclusive practices.

To improve support introduce training on trans issues for all staff. As organisational culture and awareness comes from the the top it is important that senior managers attend and are fully on board with inclusive initiatives. LGBTQIA+ staff networks and workplace champions can advocate better inclusion, increase awareness, and provide support.

2. Understand legislation and terminology

While current legislation affording protection to trans individuals (namely the Gender Reassignment Act 2004 and the Equality Act 2010) was welcomed, concerns were raised in our research regarding the terminology and definitions employed as they do not explicitly apply to all members of the trans and intersex community.

The issue of terminology in relation to gender identity is also discussed more generally because this is continuously evolving and can be very sensitive, which can make it tricky for employers to keep pace with and feel confident about.

Best practice for employers is to extend support to all trans and intersex employees, including those not explicitly protected by the law, and for trans employees to be given the opportunity to describe their gender identity and preferred name and pronouns in language they are comfortable with.

3. Have appropriate policies supported by good line management

Having trans-specific policies that draw on the knowledge of external agencies, trade unions, and trans and intersex employees themselves can help trans staff feel more secure and protected at work.

Developing policies proactively (as opposed to reactively when a worker approaches you with their situation) can make all the difference. Cascading policies throughout the organisation and monitoring their implementation were identified as key factors to their effectiveness.

And while having clear policies on trans-related issues can act as a guide on appropriate behaviour, it’s important not to underestimate the importance of good line management.

So what’s next?

A lot remains to be done for workplaces to become fully inclusive for trans and intersex employees. The Acas research discussed here suggests some ways in which employers and employees can be better supported to start doing this effectively.

Acas has also recently published new guidance, Gender reassignment discrimination – key points for the workplace , which provides good practice advice for employers on how they can address the issues identified in this research.

Nicola Bowman is a research officer at Acas

Further reading

Creating a trans- and gender-friendly workplace

Our pick... Transgender workplace support

Transgender opportunities: employers must play a lead role

How can HR be a trans ally?

Transphobia rife among UK employers

HR has the opportunity to lead on trans and non-binary inclusivity

How HR can create a trans inclusion policy 

Putting the 'T+' in LGBT+

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ACAS supporting transgender employees in the workplace

If you believe that you have been treated less favourably than another individual in the workplace  and you feel that the treatment is connected to one or more of the characteristics protected and defined in the Equality Act 2010, then you may be able to pursue a claim for unlawful discrimination .

The protected characteristics as defined by the Equality Act 2010 include:

• Sexual orientation
• Marriage and civil partnership
• Gender reassignment
• Religious beliefs

It has become more apparent over the past few years that there has been a significant increase in the amount of discrimination reported in the workplace by people in the transgender community. ACAS has recently published a new research paper on supporting trans and intersex employees in the workplace. The paper covers legal and policy issues employers may have, as well as barriers, challenges and suggestions for change.

The report identified that employers and employees found the Equality Act 2010 to be the ‘bare minimum of protection’ and that the legislation did not provide sufficient advice or guidance for employers to help them identify what actions they should take and how to implement the provisions of the Act in the workplace. Most of the people interviewed for the purpose of the ACAS report confirmed that they believed that the Equality Act 2010 was not currently fully trans or intersex-inclusive and ‘good practice was thus roundly agreed to be action which goes above and beyond what is enshrined in law’.

The report identifies that ‘transphobia and prejudice can be a daily experience in UK workplaces and this can lead to direct discrimination, as well as indirect and unintentional discrimination ’.

Under Section 19 of the Equality Act an individual with a protected characteristic is protected against indirect discrimination.

Indirect discrimination can occur when an employer applies a provision, criterion or practice (‘PCP) which puts an individual at a disadvantage when compared to others due to their protected characteristic. Therefore, employers are required to ensure that the policies they have and the ‘tone’ of the organisation, don’t segregate people of the trans community. The ACAS guidance has therefore been created to assist employers in ensuring that the workplace is a welcoming environment to all. It is clear from the report that all employment policies should consider the needs of trans employees and ensure that they ‘advocate for better inclusion’.

The report found that the biggest barrier for the trans community, was the lack of knowledge amongst employers, meaning that this is likely to lead to ‘ a lack of management confidence in dealing with issues and persistent stigma’ in the workplace. It is clear that raising awareness and educating the workforce and management teams about the issues for the trans community in the workplace are important in working towards ensuring that this type of discrimination is eradicated.

The report highlighted key policy changes which all employers should consider, such as:

• Providing individual toilet cubicles for all staff or allowing staff to use facilities to align best with their gender identity;
• Reviewing dress codes or uniform policies at work for any potential negative implications for trans staff; having clear protocols for data management to avoid any non-consensual disclosure of previous identities

Please see ACAS guidance for further information and case study examples.

If you feel that you have been discriminated against as a result of your transgender status then you may be able to bring a claim for discrimination under the terms of the Equality Act 2010. Please contact our specialist discrimination team for further advice on 01616 966 229 .

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