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For reference, the url of this document is:

www.seemp.co.uk/index/hrhs/whatsnew/employmentaz/elg/gender_reassignment.htm

© South East Employers 2018

Employment A-Z

G

 

Gender Reassignment

Transgender

Transgender is a term used to describe people whose gender identity differs from the sex the doctor marked on their birth certificate. Gender identity is a person's internal, personal sense of being a man or a woman (or someone outside of that gender binary). For transgender people, the sex they were assigned at birth and their own internal gender identity do not match.

Gender reassignment is a personal, social, and sometimes medical process by which a person's gender appears to others to have changed. There are several requirements that a transgender person must meet before undergoing the operation(s), including living as their chosen gender for a period of time. Anyone who proposes to, starts or has completed a process to change his or her gender is protected from discrimination under the Equality Act. A person does not need to be undergoing medical supervision to be protected. So, for example, a woman who decides to live as a man without undergoing any medical procedures would be covered.

A transgender person should be treated as having the sex of their acquired gender, i.e. a person living as a woman should be treated as female.

For more information on gender reassignment please see the EHRC website.

Intersex

Transgender is different to being Intersex. Intersex people are born with sex characteristics (including genitals, gonads and chromosome patterns) that do not fit typical binary notions of male or female bodies. Intersex is an umbrella term used to describe a wide range of natural bodily variations. In some cases, intersex traits are visible at birth while in others, they are not apparent until puberty. Some chromosomal intersex variations may not be physically apparent at all.

UK law only recognises the binary genders of male or female. Intersex people are not protected from discrimination on the grounds of gender reassignment. They may however, be protected on the grounds of sex or disability, depending on the circumstances.

Gender Recognition Certificate

On completion of the surgical procedures to change a person's gender, that person can request a Gender Recognition Certificate under the provisions of the Gender Recognition Act 2004. This certificate allows the person to request a birth certificate in their acquired gender and requires all records to be updated to reflect the new gender.

Employers should ensure they have rules in place which help to prevent discrimination in:

  • recruitment and selection

  • determining pay

  • training and development

  • selection for promotion

  • discipline and grievances

  • countering bullying and harassment

  • taking time off work.

Employers can support trans people at work through.

  • Good Communication - Through the company rules, practices and procedures ensure that there are clear statements about the acceptance and support for different forms of gender identity and expression. Make it clear to staff, clients and customers that discrimination, harassment and victimisation because of gender reassignment are unlawful.

  • Support for individuals undergoing gender transitions - Discuss with the person how they would like their colleagues to be told about their transition. Some trans people may feel comfortable talking about their transition with colleagues, but others may prefer not to.

  • Confidentiality - At a time agreed with the person, all personal records should be changed to the new name and gender. Access to personal records which state a person's previous gender should be retained only if necessary, and otherwise deleted or destroyed.

Employees should make sure that they consider the following.

  • Telling people about the situation. Make a list of the people who need to know. Speak to them personally, or ask HR or a line manager to communicate with them.

  • Medical appointments and absences. Make sure the employer knows about what  time off work will be needed. Remember that it is discrimination for an employer to treat a person worse if they are absent from work for a reason related to gender reassignment than you would be treated if you were absent because you are ill or injured, or if you were absent for some other reason.

  • Changing e mail, work passes etc. Changing name on email addresses, company directories, records and work pass will need to be done. Speak to the HR department at an early stage about how this should be done.

 

There are four types of discrimination.

Direct discrimination

Is when someone is treated differently and not as well as other people because of their gender reassignment. It breaks down into three different sorts of direct discrimination or treating someone 'less favourably' because of:

  • their own gender reassignment (direct discrimination)

  • a perception that they are undergoing gender reassignment (direct discrimination by perception)

  • their association with someone who has changed their gender (direct discrimination by association).

Indirect discrimination

Can occur where a workplace rule, practice or procedure is applied to all workers, but disadvantages people who want to undergo, are undergoing or have undergone gender reassignment. An example might be a rule or policy that makes individuals say if they have undergone gender reassignment.

Harassment

When unwanted conduct related to gender reassignment causes a distressing, humiliating or offensive environment for that person.

Victimisation

Treating an employee unfairly because they have made or supported a complaint about gender reassignment discrimination.

It is discrimination to treat transgendered, or trans, people less favourably for being absent from work because they want to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured.

 

In August 2017 Acas published a new research paper on supporting trans and intersex employees in the workplace (the paper moves away from the nomenclature 'transsexual').

Over some 50 pages (plus case studies), the paper covers the legal and policy issues when employing trans and intersex workers, along with detailed guidance on what 'good' employers do. It also considers barriers, challenges and suggestions for change

In November 2015 the Government Equalities Office published The Recruitment and Retention of Transgender staff - Guidance for employers.