Gender Agenda

LEGAL FOCUS – Keely Rushmore, partner in the employment department at SA Law on addressing transphobia.

One in three employers have admitted that they would not hire a transgender person. This worrying statistic provides an insight into the struggles transgender individuals face in connection with their employment. The true figure may be significantly higher, with employers perhaps not readily admitting to their prejudices. Whether it be bigotry or ignorance, this approach at the very minimum exposes employers to discrimination claims.

Transgender individuals first received statutory protection against discrimination in 1999, later enshrined within the Equality Act 2010. Gender reassignment is defined as when a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Workers falling within this definition are protected against being directly discriminated against because they are transgender, as well as from indirect discrimination, where the employer applies a seemingly neutral provision or practice which puts transgender employees at a disadvantage. Harassment of employees in relation to gender reassignment is also, of course, unlawful as is victimisation of a transgender employee for, amongst other matters, raising a complaint of discrimination. It’s not just existing workers who are protected, but also prospective ones. In fact, discrimination regularly occurs during the recruitment process, with the new research finding that almost 50 per cent of employers would be unsure about employing a transgender individual.

Employers are prevented from applying criteria to their job descriptions if it discriminates against a protected group. Yet if it is part of an occupational requirement, employers may be justified. For example, in recruiting for employees who will be working alongside female rape victims, an employer may lawfully solely recruit females. This may be irrespective of whether a female who has undergone gender reassignment and was previously male, can produce a gender certificate. Whether it is contemporary and fair to such protected individuals is questionable. Nonetheless it provides a safeguard to employers recruiting in specific, sensitive circumstances.

Whilst individuals who fall within the legal definition of gender reassignment are protected, there is criticism that current law is inadequate. There is limited scope for those who identify as non-binary, inter-sex or transvestite to seek redress if they are treated poorly at work. This seems disappointingly backwards in modern society. Nonetheless, there are ways in which such individuals may bring discrimination claims, whereby for example, they have been wrongly perceived to have been undergoing gender reassignment. A review is being undertaken in this regard, and there may be changes to the law in the future.

Compensation in respect of successful discrimination claims is theoretically unlimited, and a successful Employment Tribunal complaint by a transgender employee can cost an employer a significant amount of money. There’s also the adverse publicity that such a claim will inevitably attract alongside the management time (and legal fees) spent in defending it.

There are obvious steps that employers can take to promote an inclusive and tolerant workforce, and to prevent discrimination. In particular, employers should:

1. Check that their policies, including anti-bullying and harassment, equal opportunities and disciplinary procedures, are up to date and ensure these are well-publicised within the workforce and inspire attitudes of inclusivity and diversity;

2. Take care not to disclose personal information about a transgender individual without their prior consent. Should you agree with the individual that it is necessary to write a letter informing fellow employees of their circumstances, make sure you do so with the employee’s full knowledge and cooperation. Irreversible damage to the employee’s work life may result should this not be followed.

3. Adopt a zero tolerance approach to discrimination, including bullying or harassment, treating all complaints seriously and following due process;

4. Ensure that transgender individuals are aware of support networks available to them. Ensure that the workforce know who they can talk to, in confidence. Research into local support groups which may be of interest and beneficial to your employees;

5. Instil the importance of inclusivity and diversity within your workforce and be confident that senior staff exemplify this. Increase awareness of gender issues, by educating and training your employees.

Employers and their workforce share a moral and legal responsibility to eradicate unlawful discrimination in the workplace, and to enable all workers, irrespective of their status or other protected characteristic, to work without fear of harassment, bullying and unfavourable treatment. The law as it stands may not protect all workers from discrimination, nor allow them to seek redress, but an approach encouraging inclusivity and discouraging intolerance, will be a step in the right direction.