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The law in this area has been the topic of much controversy. One of the protected characteristics under the Equality Act 2010 is “gender reassignment”. This is defined as applying to those who are proposing to undergo, are undergoing or have undergone a process of reassigning their sex by changing physiological or other attributes of their sex. But this definition has been criticised for failing to protect the wider trans community.
In a welcome development, the Birmingham employment tribunal held in Taylor v Jaguar Land Rover Limited that non-binary and gender fluid individuals were protected under the Equality Act 2010. Importantly, the tribunal also confirmed that medical intervention was not required for the protection to apply.
Although only a first instance decision, the ruling reflects a more inclusive approach which should be adopted in transgender policies. Policies limiting protection to those who have undergone, or intend to undergo, medical intervention will no longer be compatible with the rights of the trans community.
For employers wishing to update their approach, here are some top tips for designing a transgender policy:
1. Remember that each trans person’s experience is different. Not every person’s transition involves medical intervention. Some people who do not identify as their gender at birth, may not want or need to undergo medical intervention and instead may only want to transition socially and/or legally. Employers should avoid structuring documents around the transition process. Instead, structure them around the workplace journey, such as first day at work arrangements, meetings with HR etc.
2. Separate your policy and guidance documents. A policy usually sets out the organisation’s commitment and support for trans people, whereas guidance provides practical steps for individuals in the organisation who are transitioning, as well as colleagues of those who are transitioning.
3. Suite of documents. While there is no standard approach to the structure and content of transgender policies, Stonewall suggests having the following suite of documents in recognition of the different experiences that trans people have in the workplace:
4. Consider language. Use non-binary language in any transgender policy (such as “their” instead of “his” / “her”) and across all policies more broadly. The terms “gender identity” and “transgender” should be used instead of “transsexual” and “gender reassignment”. Keep in mind that the language and terminology around gender identity is rapidly evolving. Stonewall suggest it might be helpful to have a separate definitions document which can be updated when needed.
5. Include a summary of the law in your policy. The key pieces of legislation are the Gender Recognition Act 2004 and Equality Act 2010. However, be mindful that the framework and terminology in the law is outdated. For example, as mentioned above, the Equality Act wording does not cover a wider category of non-binary identities. We recommend explicitly referencing the interpretation given to the Equality Act 2010 protection in Taylor v Jaguar Land Rover Ltd and acknowledging the developing areas in your summary of the law.
6. Consider how to deal with any periods of absence relating to a transition process. Be mindful of possible negative connotations, for example instead of referring to such periods of absence as “sick leave” consider using “medical leave” or discuss with the individual how they would like their leave to be described. You should also ensure that such absence does not count towards any absence management triggers or thresholds.
7. Provide guidance on how to deal with certain situations. As gender identity is a sensitive topic, it may be helpful to offer guidance on how to deal with certain situations such as dress code, titles on forms and the use of toilet facilities and changing rooms. Make it clear that it is inappropriate to ask someone about their gender identity unless they have indicated first that they are comfortable to talk about it. Once you know that a person identifies as being a trans person, this information should remain confidential until they expressly consent to this information being shared.
There is clearly a lot to think about when drafting transgender policies. It is important for employers to remember that every person’s transition is unique and to ensure that any policy is flexible enough to adapt to the individual.
12 January 2021
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