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03 December 2015

Nick Fry comments on the government’s new guidance for employing transgender workers

3 mins

The government’s new guidance The recruitment and retention of transgender staff attempts to address the employment difficulties faced by transgender workers. ‘Transgender’ or ‘trans’ is a broad term intended to include people whose personal experience of gender extends beyond the typical experiences of those of their assigned sex, and transsexual people (those who transition from the gender they were assigned at birth to live in the opposite gender). 

The guidance is designed for employers and describes a ‘business case’ for operating in an inclusive and non-discriminatory way that promotes equal opportunities for trans workers. The guidance covers a range of areas including, marketing, recruitment, discrimination law, record keeping, and retention.

It deals in some detail with helping trans staff during ‘transitioning’, which is the process a transgender person goes through when aligning their life and physical identity to match their gender identity, for example by changing their name or their clothes, or by having medical treatment. The general advice given is to establish an open and trusting relationship between an appointed member of staff (such as someone from HR) and the employee so that an adaptable plan can be put in place to manage the process for both sides (a plan template appears at page 26 of the guidance).

The guidance goes on to explain the rights of trans people not to be discriminated against at work, as set out in the Equality Act 2010. The Act prohibits discrimination because of ‘gender reassignment’ and protects not only people who have transitioned or are transitioning, but also people who are proposing to transition (section 7(1)). The Act also specifically protects the rights of trans employees to time off relating to their gender reassignment. Section 16 makes it unlawful to treat a trans person less favourably because they are absent from work due to gender reassignment, as opposed to sickness or injury.   

The end of the guidance deals with The Gender Recognition Act 2004 and makes the important point that whether or not a person has a Gender Recognition Certificate (a new birth certificate legally recognising a newly acquired gender) has no bearing on their rights not to be discriminated against.

This is undoubtedly a useful document for employees and employers, as well as organisations that work to promote equal opportunities or specifically support trans people. It may also prove to be a valuable resource for trans employees who are lodging internal discrimination grievances or employment tribunal claims relating to their employer’s failure to support them.

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