In 2015, there was an apparent shift in the coverage of trans people in the media, with largely supportive and positive portrayals of the transitions of celebrities such as Stephanie Hirst, Jack Monroe, Caitlyn Jenner and Kellie Malonie. We have also seen trans actors in Eastenders, and Hollyoaks and Eddie Redmayne is playing a trans woman in the Danish Girl which is currently in the cinema. It is fair to say that trans issues have never been so publically discussed and considered.
However, whilst the UK has been a pioneer in legislation protecting trans individuals, it is now widely perceived that our existing legislation no longer goes far enough to protect trans individuals, is out of touch with modern day thinking and needs revision.
In particular, there is awareness now that gender is a much more fluid concept than ever previously understood. Many transgender individuals identify as “non-binary”, i.e. neither male or female and some individuals have a fluid gender such that they feel a changing gender day to day. It is therefore now seen as appropriate to move away from binary identifications of gender on forms and include an option of “non-binary” and, where it is necessary to provide a title, include the gender neutral title of “Mx”.
There is also an increasing understanding that whilst transitioning was previously considered in terms of whether a person was undergoing hormone treatment or surgery to change physical attributes this is now outdated. The term “transition” should be used to describe the permanent full-time adaptation of the gender role in all spheres of life. A few people make this change overnight, but many do so gradually over a period of time, changing their presentation intermittently, and sometimes while undergoing early medical interventions such as hormone therapy. Individuals, particularly those who identify as non-binary, may make a change to gender presentation (for example name and the way they dress) without any medical intervention.
A recent report by the House of Commons’ Women and Equalities Committee into Transgender Equality has made various recommendations for changes to the legislation, reflecting increased understanding of trans issues.
With this in mind, we have considered some practical pointers for best practice in assisting with helping a transgender employee to transition or come out in the workplace as their true gender.
1. Have a plan on assisting with the transition
Whilst many trans individuals may wish to keep their trans background private, this cannot be secret when there is a change in gender role in the workplace. It is therefore essential that the transition is carefully planned.
Talk to the individual concerned and make sure you are absolutely clear on how to manage all aspects of their transition in the workplace. The plan should be regularly reviewed and flexible.
Do not do or say anything relating to the individual’s transition without checking with them first and listen carefully as to how they want to manage communications (including what communications will be made, by whom, to whom) and other matters. Always be led by them.
2. Don’t ask for documentary evidence
In almost all cases it is not necessary to have any documentary evidence to prove the change of name and social gender. Just ask the individual to sign to confirm the new name and pronoun they wish to be used going forward.
Whilst you should be careful not to put the employee in the spotlight, in certain cases it may be helpful to have some specific trans Equal Opportunities training before or following the employee’s transition. As with all matters, you should discuss your plans with the employee to make sure they are comfortable with the proposal.
4. Data protection
Any documents setting out a plan for an employee’s transition must be stored with exceptional care. Electronic files must be password protected and any hardcopies stored separately to other employee’s files in a locked cabinet.
Once an employee has transitioned, all references to previous names and titles must be replaced with the new name and title. Old documents which cannot be altered should again be stored with special care. The documents should not be accessed without the prior permission of the employee.
If an individual has a Gender Recognition Certificate (and therefore has legally changed their birth gender), it is a criminal offence to reveal the person’s previous legal gender without their express permission.
5. Pensions and insurance
Where an employee has a Gender Recognition Certificate this may have an impact on their pensions and insurance benefits. Any impact should be explained to the employee in advance.
Sometimes, there is a requirement to notify insurers if the company is aware that the employee has undergone gender reassignment; a failure to do so can invalidate the insurance cover. If a notification is required, this should be discussed in advance with the employee and any notification should be done in the strictest of confidence.
6. Sick pay
Where an individual has time off work for medical treatment relating to a transition, this should be treated as any other sick day under the company’s sickness policy.
7. Joint facilities
Just as there is an excessive focus on surgery for transgender people, there is often also an excessive focus on toilets! This shouldn’t be too complicated – the day the individual presents at work in the alternative gender role is the day they should start using the alternative gender toilet facilities. The employee shouldn’t be asked to use the disabled or unisex toilets. Any other employees who have an issue with the trans employee sharing facilities should be educated and if necessary, disciplined.