Looking out for the T in LGBT

6th September 2017 Employment

ACAS have this week published guidance on supporting trans employees in the workplace, hopefully addressing a gap in legislative protection pointed out by a recent Institute of Employment Studies review. Whilst the Gender Recognition Act 2004 and the Equality Act 2010 afford LGBT employees a degree of critical rights, they are generally viewed as not fully trans or intersex inclusive.

The IES brought to light some alarming statistics; 60% of trans employees confirmed they had experienced some form of discrimination in the workplace, with 36% stating they had left their jobs as a consequence. In addition 9 out of 10 trans interviewees had suffered depression as a result of how they were treated at work.

Terminology itself can be an issue, the report highlights, and employers need to be aware of the move from umbrella terms to more specific categorisations which employees feel more accurately reflect their situations. The following definitions are taken from the report;

Trans An umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Used throughout tha ACAS report because of its more inclusive scope.

Transsexual The protected characteristic of gender reassignment under the Equality Act 2010 i.e. someone who 'proposes to undergo, is undergoing or has undergone gender reassignment'. Some consider the term old fashioned, too medical and too focused on trans people's bodies.

Transgender Sometimes historically used as a less controversial alternative to transsexual. Now more often used as a more inclusive umbrella term similar to trans.

Non-binary Someone who does not identify with a binary gender. They may be neither man nor woman, both man and woman, or take another approach to gender entirely.

Cisgender Where gender aligns to the sex a person was assigned at birth.

Intersex A naturally occurring variation of human development. In some intersex variations, the appearance at birth is neither clearly male nor female.

One of the difficulties in addressing these problems is the diversity of journeys trans, intersex and non binary employees find themselves on. No one size fits all when it comes to offering support, which is why relying on legislation alone can lead to pitfalls for all parties. As the ACAS guidance points out, flexibility is key. This however does not mean that policies should be avoided; rather they should be drafted by drawing upon the insight of working groups, trade unions and third party experts. They should also be routinely monitored and cascading throughout all levels of personnel.

In terms of practical guidance, ACAS recommends the following best practice;

  • Do not disclose an employee's gender identity without their consent apart from in exception set out in law.
  • Ensure there are clear protocols for data management to avoid any non-consensual disclosure.
  • Provide managers with good quality diversity and inclusion training.
  • All trans employees should be treated fairly irrespective of whether their gender identity is protected by the Equality Act 2010.
  • Employers should consider how to raise awareness of trans issues and encourage the use of LGBT champions.

The study recognises that employers ought to take more initiative when it comes to this area, not sticking with the status quo which often finds the onus on trans employees themselves to bring up and deal with workplace matters.

Calls remain for the Equality Act 2010 to be amended to make clear that all those who identify as trans are protected. Currently the protected characteristic of gender reassignment covers those whose gender identity differs from the gender assigned at birth. However, those with a non-binary identity are not explicitly protected under the Equality Act 2010 (although a person will be protected if they are discriminated against because of perceived gender). Until such changes take place however the guidance is a most welcome start to a more inclusive approach. Employers ought to take the time to review the guidance, which includes helpful case studies for picking up practical tips.

For more advice or information on this topic, contact our employment team by using the form or calling 0345-872-6666.

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Paul Chamberlain is a Partner and Head of Department located in Manchesterin our Employment department

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