Progress in transgender rights and employment law

Monday 13 November marks the start of Transgender Awareness Week and here Abi Pawlett and Paul Ball reflect on the developments that have been made in employment law and best practice in recent years in relation to transgender rights.

The introduction of ‘gender reassignment’ as a protected characteristic

The Equality Act 2010 (EqA 2010) was a milestone in protecting transgender rights as it introduced for the first time ‘gender reassignment’ as one of the nine protected characteristics that were legally safeguarded from discrimination, indirect discrimination, discrimination by perception or association, harassment, and victimisation.

Gender reassignment is defined as, where a person is:

“proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex” (section 7(1) EqA 2010).

A transgender employee qualifies as protected under the EqA 2010 if they are “proposing to undergo” gender reassignment. In other words, they become protected as soon as they self-identify as transgender, without the need for medical evidence (such as a diagnosis of gender dysphoria) or to progress with surgery.

The requirement to accommodate absences from work “because of” gender reassignment

Section 16 of the EqA 2010 provides further protection, making it unlawful to discriminate against a transgender employee for taking time off (or wanting to do so) “because of” gender reassignment.

This includes transgender employees being treated less favourably for taking time off “because of” gender reassignment compared to them being absent due to:

• an illness or injury; or
• a reason other than sickness or injury and it is unreasonable to treat them less favourably.

By way of example, if an employer rejects a request for annual leave by a transgender employee who intends to undergo gender reassignment so that they can attend a counselling session, this could amount to unlawful discrimination if the employer did not have a good reason for refusing the request (e.g., if there were a lot of other employees going to be off work the same day).

Employers must therefore reasonably accommodate transgender employees when requesting time off for appointments relating to gender reassignment.

Updating policies and ensuring regular training is provided

Employers should have policies in place to highlight the support they offer to transgender employees in the workplace. Employees should be signposted to where they should go or who they should raise concerns with if they have experienced or witnessed unlawful discrimination. Employers should provide regular training to employees on the policies to educate them on what is and is not acceptable in the workplace. This will reduce the likelihood of unlawful discrimination and also create a more accepting and supportive work environment for transgender employees.

If the employer has a policy on dress codes at work, this should allow all employees to dress in a way that aligns with their gender identity.

Using preferred pronouns

Employers should respect and use an employee’s preferred name and pronouns and create a supportive atmosphere where employees feel they are able to make clear their preferred pronouns, such as by allowing employees to include preferred pronouns in their email signature if they wish to do so.

To avoid employees and colleagues from being misgendered, employers should encourage the use of gender-neutral pronouns in documents, such as employment contracts, which should as standard practice refer to employees as ‘they/ them’.

Introducing inclusive facilities

Employers should also consider whether they are able to provide gender-neutral facilities, such as toilets that can be used by any employees regardless of gender or disability, to prevent transgender employees from being forced to use facilities that do not align with their gender identity.

Conclusion

An employer should educate and manage employees by having clear policies on unlawful discrimination, harassment, etc. and also by making clear what is and is not acceptable when it comes to expressing /manifesting competing views in the workplace. While progress has been made to increase the legal protection of transgender individuals in the workplace, we are increasingly seeing friction points arising in the workplace context between those rights and the rights of individuals who hold gender-critical views.

Gender-critical views, i.e., that sex is assigned at birth, is immutable and can’t be changed can also be a protected characteristic under the EqA 2010, as confirmed in Maya Forstater v CGD Europe, which means individuals cannot be unlawfully discriminated against simply for holding gender-critical views. There is a distinction between the protection offered for simply holding gender-critical views compared to how an individual manifests the same. Accordingly, an individual’s manifestation of their ‘protected’ view could still amount to unlawful discrimination or harassment under the EqA if this is done in an unmeasured and offensive way.

We have seen several cases in the Employment Tribunals where employees with gender-critical views have successfully claimed unlawful discrimination because of how their employer has dealt with complaints (i.e., by colleagues supportive of trans rights who have been offended by how the employee has spoken of their gender-critical beliefs). The law as to what is or is not acceptable behaviour in the workplace in relation to these clashing protected characteristics is still evolving. Employers need to tread carefully in deciding what level they will set as acceptable or unacceptable manifestation of views relating to the rights of people who hold gender-critical views and the rights of trans-employees, as well as considering what training they need to provide to employees about this very emotive issue.