Gender reassignment is a protected characteristic under the Equality Act 2010. To avoid causing distress to, or potentially discriminating against, an individual it would be wise to be familiar with the key terms surrounding gender reassignment.
Having an understanding of the below terms will help promote awareness and inclusivity, whilst avoiding incidents of harassment or bullying.
Gender identity — this is how a person perceives their gender. Typically, this is the birth gender or the gender that is associated with their physical appearance; however, those who are undergoing gender reassignment may associate with a gender that does not match their physical appearance.
Gender reassignment — this is the process in which individuals change gender. This may be from a female to a male, or from a male to a female. To be included within the protected characteristic of gender reassignment, the individual does not need to undergo any medical treatment or intervention.
Gender dysphoria — this is a recognised medical condition where an individual feels distress and discomfort as their gender identity is inconsistent with their physical appearance. This used to be known as “gender identity disorder”.
Transsexual — this is the specific term used within the Equality Act to define individuals who fall within the protected characteristic of gender reassignment.
Transgender/trans — these are umbrella terms commonly used to describe all individuals whose gender identity falls outside of their physical appearance. These terms will cover individuals such as those who adopt the physical appearance of the opposite gender on an intermittent basis and non-binary identities, as well as those who are transsexual. These terms are commonly seen as more inclusive than the term transsexual.
Non-binary — this describes individuals whose sense of gender identity does not identify with male or female. Many non-binary individuals will refrain from using pronouns such as “he” or “she”.
Gender expression — this is the way in which an individual chooses to express their gender. Common examples include clothing, jewellery, hairstyle, voice, names and pronouns.
Affirmed gender — this is the term for an individual’s gender once gender reassignment has taken place.
Maintaining and respecting employee privacy
There is no requirement for a transsexual individual to inform your organisation of their gender reassignment, either prior to or during their employment. You should not ask employees intrusive questions about their gender identity or affirmed gender.
In practice, you may become aware that an individual is a transsexual, transgender or non-binary. This may be because the employee has directly informed you of this, eg they are currently transitioning so need to request time off for gender reassignment, or through indirect methods such as social media or identity documents.
To avoid breaching the individual’s privacy, you should meet with the employee, in private, to discuss sharing this information with necessary third parties. Where the information is required to be disclosed, such as for legally required recruitment checks, the employee should be informed of this in advance. In addition, you must make sure an employee is not “outed” as being transgender or a transsexual as this is likely to breach privacy laws. Again, any sharing of information can be discussed and agreed with the individual in advance.
Gender recognition certificates
Under the Gender Recognition Act 2004, individuals who have undergone gender reassignment may apply for a gender recognition certificate as legal recognition of their affirmed gender. A certificate will be provided by the Gender Recognition Panel which allows the individual to go on and apply for official documents in their affirmed gender, such as a new birth certificate or marriage certificate.
Where you are aware that a job applicant or employee has undergone gender reassignment, you must not ask to be provided with a gender recognition certificate. Instead, your organisation should proceed as if they have received this certificate and the individual’s affirmed gender is legally recognised.
Using appropriate terminology and language
How your organisation communicates with, or about, a transsexual or transgender individual will set the foundation for a respectful and accepting workplace culture.
Although it can be easy to assume the title or appropriate pronoun to use dependent on an individual’s physical appearance, you should positively avoid making this assumption. For example, non-binary individuals may not wish to be referred to as “he” or “she” based on their appearance. It is best practice to speak to the employee, in private, and sensitively ask them how they would prefer to be addressed or referred to. You should also request their approval to communicate this to others within the business as necessary.
Diversity and equality training carried out by your organisation should include information on appropriate terminology and language to use when speaking to, or about, a transsexual or transgender individual within the workplace. This can also be included in an internal policy.
Inappropriate use of terminology or language
You may experience situations where members of staff are using inappropriate, derogatory or insulting terms and phrases about individuals who are undergoing, have undergone or are proposing to undergo gender reassignment. It is vital that you take immediate action to prevent this occurring; this may be informal action, although most cases will require formal action.
In some cases, employees may purposefully use an employee’s previous title, past name or an inappropriate pronoun as a way of demeaning or insulting the employee. This should be viewed as a formal disciplinary matter by your organisation and the normal disciplinary procedure should be followed.
Employees may claim they are engaged in “banter” with the individual when they are using inappropriate terminology or language. Your organisation should still view this incident seriously and steps should be taken to address this with the employee. Banter is not an acceptable defence to incidents of harassment, and you will have to show your organisation has taken all reasonable steps to prevent unacceptable language should the individual bring a harassment claim at tribunal (see Preventing discrimination and harassment below).
Having an inclusive recruitment process
Your organisation’s approach to recruitment should focus on finding the best applicant for the role, regardless of whether they have undertaken gender reassignment or not. The Equality Act offers protection against discrimination on the grounds of gender reassignment to job candidates and applicants, therefore, your organisation’s recruitment process should remain inclusive and diverse.
When carrying out a recruitment process, you can consider the following:
When writing recruitment documents such as the job advert, job description or person specification, you should make sure these are free from any gender specific language to avoid alienating those who do not identify with a specific gender. Instead, you can use gender neutral terms such as “you will” or “the employee will”, rather than “he or she will”.
Application forms may not need to classify the individual’s title or gender as required information; however where they do, they should include the option for an individual to select “prefer not to say”.
When conducting interviews, you should take care to avoid assuming the individual’s gender matches their appearance. It will be best practice to ask all applicants how they would like to be addressed during the interview.
Where the individual reveals, at any time during the recruitment process, that they are undergoing, have undergone or propose to undergo gender reassignment, they should not be asked any invasive or discriminatory questions on this subject. Instead, they can be praised for their openness and any support offered by the organisation can be outlined. The process should then continue as normal, focusing on the role and not the individual’s gender reassignment.
Ultimately, recruitment decisions made by your organisation should be based on objective criteria necessary for the role, such as skills, experience and qualifications.
Providing changing and toilet facilities
Your organisation should trust individuals can choose appropriate facilities depending on their affirmed gender. To reduce the risk of concerns or complaints from other members of staff, you can communicate your organisation’s stance on the use of facilities to the workforce. This could be through an internal policy (see Introducing a workplace policy below) or by sending an internal email or notice regarding your employees’ freedom to choose appropriate facilities.
Your organisation may decide to adapt current facilities to provide gender-neutral facilities or those with private cubicles. You should still refrain from forcing employees to use particular facilities and a policy that transsexual or transgender employees should use disabled facilities is likely to be indirectly discriminatory.
Workplace dress codes
Most organisations have a workplace dress code, usually to project a professional business image or for health and safety requirements.
Your organisation should implement the dress code flexibly to allow transsexual staff the opportunity to amend and follow the dress code as per their gender identity. Any requirement to wear staff uniforms, or branded clothes, should allow staff to select the appropriate uniform which matches their gender identity.
Your organisation may decide to adapt your current dress code to provide gender-neutral appearance rules. This will usually require you to amend any gender-specific rules, such as all male employees are required to wear trousers.
Time off work for gender reassignment
Employees who are absent from work because of gender reassignment are provided additional protection under the Equality Act. It will be discriminatory for your organisation to treat a employee less favourably for taking time off for gender reassignment than they would treat an employee who is absent from work because of sickness or another reason. For example, where an employee tells you they need time off for gender reassignment, it is likely to be discriminatory to inform them that they can take time off but this will be unpaid.
Your organisation should meet with an employee who has requested time off because of gender reassignment to discuss how this will be accommodated. There is no set period of time contained in the legislation for this time off so your organisation should treat this under its normal practices and procedures, as if the employee was sick or injured.
Following a request for time off work, your organisation will now be aware that the employee is undergoing gender reassignment. This information should not be disclosed to others, without the employee's prior agreement, to avoid breaching the employee’s right to privacy — see Maintaining and respecting employee privacy above.
Carrying out formal action for absence levels
When carrying out action under your organisation’s absence procedures, you should avoid including any time off work for gender reassignment when assessing whether an employee has reached the trigger point for formal action. This is likely to be classed as indirect discrimination on the grounds of gender reassignment and your organisation will need to have a sound business aim, and proportionate method of achieving this aim, to avoid acting unlawfully.
Preventing discrimination and harassment
Your organisation should take all reasonable steps to prevent discrimination and harassment occurring in the workplace. Implementing a clear, well-drafted equality and diversity policy will be a good first step as this can set out your organisation’s stance on equality in the business.
You should also carry out discrimination and harassment training for all members of staff. This could take place as part of the induction process at the start of employment but should be repeated periodically, with extra training provided following incidents of discrimination. Managers and senior employees can also receive additional training covering matters such as making decisions without taking in to account discriminatory factors, spotting incidents of discrimination and handling discrimination complaints.
A useful deterrent against discrimination and harassment taking place is to address all complaints seriously and formally. It is crucial that allegations are not ignored, or judged as unimportant, based on your perception of the behaviour. In harassment cases, it will be the perception of the individual alleging harassment which will determine whether harassment has occurred or not. Taking formal disciplinary action against those who have carried out discrimination or harassment will deter the employee concerned, and others in the workforce, from carrying out future unlawful acts.
Introducing a workplace policy
To reflect the diverse and inclusive nature of the business, your organisation may choose to introduce a specific Gender Reassignment Policy or Time off for Elective Surgery Policy. Alternatively, you can amend your organisation’s equal opportunities policy to make reference to workplace rights, responsibilities and support for individuals who are undergoing, have undergone or are proposing to undergo gender reassignment.
These policies can be used to clearly and transparently set out your organisation’s stance on:
time off work for gender reassignment
use of workplace facilities
application of workplace dress code
security passes and access
communication of gender reassignment
returning to work following completion of the transition process
preventing discrimination and harassment.
Providing workplace support
Individuals who have undergone, are undergoing or are proposing to undergo gender reassignment may view this as a daunting transition, without the added pressure of how this will be viewed or treated in the workplace. There are many steps your organisation could take to provide workplace support for these individuals including, but not limited to:
holding meetings with the individual to discuss whether they require ongoing support through their gender reassignment, whether any previous workplace support has had a positive impact and if they have any future concerns
seeking further advice from equality experts, LGBT support charities or medical experts
understanding that no two individuals’ experiences are the same, especially those who are undergoing gender reassignment. Rather than making assumptions, try to agree with the employee what steps the organisation can take to provide them with support
agreeing whether the individual wishes to have a short break before returning to work in their affirmed gender. Any administrative or security matters, such as email addresses, security passes or nameplates, should be amended prior to their return to work
agreeing any disclosure of information regarding the gender reassignment with the individual in advance. They should receive prior warning of any required disclosure.