Complying with the law for trans employees is only half the battle. Issues also need to be dealt with efficiently and sensitively.
The chances of having at least one transsexual or transgender employee are far greater than generally imagined. So, employers of all sizes should make it a high priority to ensure they are up to date with best practice in this area.
Around 5,000 people in the UK have already legally changed their sex by obtaining a Gender Recognition Certificate.* But many others haven’t felt the need to go this far, with some instead only wanting to use a different name to the one they were christened with.
They can change their name and gender for most services without altering their legal gender by using a statutory declaration or deed poll. Statistical data on trans individuals who haven’t actually made the legal change is still in a state of relative infancy but the government estimates that they number somewhere between 200,000 and 500,000.
The term transgender refers to someone whose identity differs from that typically associated with the sex assigned to them at birth. A transsexual person, on the other hand, is someone who has undergone, is undergoing or who has proposed to actually undergo gender reassignment.
Although the two terms are certainly not interchangeable, as many people incorrectly suppose, both are protected by similar regulations and should be subject to many of the same considerations in the workplace – some of which relate to employee benefits and sickness absence policies.
Both groups enjoy valuable safeguards via two important pieces of legislation. The Equality Act 2010, and the Gender Recognition Act 2004. It is crucial that HR is fully conversant with the implications of these as they can prove minefields to the ill-informed.
For example, you can only identify a person’s transsexual status if you have actually obtained their permission to do so. ‘Outing’ someone as transsexual is considered to be direct discrimination under the Equality Act 2010. It could also result in criminal charges under the Gender Recognition Act 2004.
Similarly, it is unlawful to request to see an employee’s Gender Recognition Certificate. Someone who has such a certificate can obtain a new birth certificate showing their acquired gender and employers should be able to use this for a range of admin requirements.
It is also crucial to appreciate that employees who are undergoing gender reassignment are protected from less favourable treatment in relation to absence from work. They may require time off to undergo surgery or to manage hormone treatment but they must be treated in the same way as they would if they were absent due to illness or injury.
But it is not just the letter of the law that should be abided by. Employers should pull out all the stops to ensure that they have a diversity policy that is not simply a box-ticking exercise and a company culture that is welcoming and inclusive, and that all issues are handled with the utmost efficiency and sensitivity.
After all, someone who has gone through gender reassignment surgery, or even just come out as transgender, has been on a long and challenging journey and could do without the hassle of having to deal with complications around employee benefits issues.
So relevant staff must, for example, be aware that, in order to amend an employee’s gender on their pension scheme(s), they need to ask them for their deed poll document or amended passport and to forward it on to their pension provider. Strident efforts should also be made to ensure that no-one mistakenly receives correspondence in their previous gender.
Apart from anything else, taking such an approach makes sound commercial sense because it can make all the difference when it comes to recruiting and retaining some very high-calibre employees.
Research carried out by jobs board Totaljobs found that 43% of transgender people actively seek out trans-friendly employers when they are job hunting. Furthermore, gay, lesbian and bisexual job seekers may well take a company’s trans-friendly approach as an indication that they are also likely to be welcome there.