Helen Dyke is a Senior Associate in the Employment Team at Irwin Mitchell

@Helen_IMHRplus @irwinmitchell explains how your organisation can support 'trans' employees 

According to @stonewalluk around 1% of the UK population might identify as trans*, including people who identify as non-binary**. That's around 600,000 people. Over the last few years, there's been an increase in awareness around gender identity and many organisations are exploring ways to make their workplaces inclusive and safe places to work and visit. 

At Irwin Mitchell we are advising our college clients to consider the following:

The law

A person will be protected against discrimination under the Equality Act 2010 if they are proposing to undergo, are undergoing or have undergone a process to change their gender identity. The process does not necessarily have to involve medical intervention and individuals are protected if they have begun to live their lives in a way to match their gender identity.  For example, a woman who decides to live as a man without undergoing any medical procedures will be protected. It is also likely that an individual with non-binary identities will be protected.

  1. Get the language right

Using outdated language can cause offence and may be discriminatory. Ask all your staff how they prefer to be addressed and make sure that their preferred titles and pronouns are respected.

Where possible, you should look to incorporate gender neutral language into documentation. This can be done in a number of ways, including:

  • the use of ‘they’ instead of ‘he/she’ and ‘their’ instead of ‘his/her’;
  • repeat ‘the person’ instead of ‘him/her’;
  • when addressing the individual in written communication, replace ‘Dear Sir/ Madam’ with ‘Dear [named person]’ and amend sign off conventions accordingly;
  • add the option of ‘Mx’ to the options ‘Mr/Ms/Mx’; and
  • use ‘Chair’ instead of ‘Chairman’.

Contracts, policies, handbooks and communications should, where appropriate, be amended to be gender-neutral. This will also benefit wider equality and inclusion across your college.

  1. Review what data you hold on employees

There is no requirement for an employee to inform you of their trans status or intention to transition. If a trans employee chooses to discuss their status, it is for them to decide what information they want to share with you and with their colleagues. 

Any information relating to an individual's gender identity and/ or history will constitute special category data (formerly sensitive personal data) under the GDPR. This data can only be processed for certain specified reasons.  

The information that you hold must reflect the individual’s current name and gender. If an employee has asked you to amend your records to reflect their title or name, you can usually do this without any legal process. But, you must make sure that any changes you have made are reflected in your internal records, email addresses and any other platform where your employees are identified. 

You can only retain their previous identity documents if you have a legal reason to do so. If you do need to retain information, we recommend that it is placed in a restricted area outside of your normal personnel records. If you need to retain paper copies, we recommend that you place these in a sealed envelope, labelled strictly confidential and keep this in a separate from other employee files. The information should only be accessed by permitted persons and electronic copies should be password protected. 

Under the Gender Recognition Act 2004, it is a criminal offence for any member of your staff who has acquired protected information regarding an individual's gender identity to disclose that information to any other person if the transgender person holds a gender recognition certificate and has not consented to such a disclosure. This applies where they obtained the information in an official capacity (such as a member of your HR team or as their line manager). 

  1. Toilets and single sex facilities

It is likely that a person transitioning will no longer want to use single-sex facilities that are incompatible with the gender they identify with. You should allow them to choose which facilities to choose. 

Many modern buildings have gender-neutral toilets and changing rooms. If your college has a combination of gender neutral toilets as well as single sex ones, you shouldn't insist that a trans employee uses the gender neutral facilities.  

You may also want to consider what signage to adopt. It's generally better to refer to ‘male’, ‘female’ and ‘gender neutral’ without images. 

This can be a particularly contentious issue and you will need to raise awareness appropriately and sensitively. You may need to give other employees time to adjust whilst also supporting a trans employee to feel comfortable in their choice of facility.  

You should also take appropriate action against any member of staff harassing a trans colleague in accordance with your equality, diversity policy and/or bullying and harassment policies. 

  1. Update your policies and raise awareness

Amend all relevant policies to specifically include trans and non binary employees. If you have a member of staff who is trans or non-binary, you may wish to seek their opinions when reviewing your current policies so they can contribute based on their own experiences. 

Many people are unlikely to fully understand the issues and discrimination that trans people face in society. Training will help your line managers and other staff understand gender identity and use appropriate terminology when referring to trans people.  

You may also want to set up equality groups and committees to help raise awareness and put on events throughout the year to show support with the aim of making trans employees feel more comfortable at work. 

  1. Review your dress code

Allow your staff to dress in the gender that they identify with. And, if possible, give them the flexibility to choose how to dress day to day, particularly as at the beginning of their transition, they may not always want to dress in the gender they identify with. 

If you have a uniform which isn't gender neutral, allow your staff to choose which 'version' they feel most comfortable in. 

  1. Allow time off for medical treatment

Do not treat any member of staff who requires time off to undertake gender affirming processes any differently from any other member of staff wishing to take time off for other medical reasons. Gender reassignment can take many months and years and it's helpful to establish an open dialogue between a senior manager (or HR) and the person going through the process to understand when they are likely to need to take time off and any support they might need.

It can sometimes be helpful to agree a ‘transition plan’ with an employee at the start of their transition process and the Government Equalities Office have provided a template for this which can be found in their guidance here.

You may also need to think about (and discuss with the employee) whether they need any adjustments or special requirements while they are undergoing treatment such as:

  • the possibility of a change of role (temporary or permanent) for medical or physiological reasons;
  • fitness for work; or
  • phased return to work.

* Acas has updated its guidance and uses ‘trans’ to describe individuals who are transgender (for example, assigned female at birth and has transitioned or is transitioning to live as a man, or assigned male at birth and has transitioned or is transitioning to live as a women) and an individual with a non-binary identity.

** Non-binary is a term for people who don’t solely identify as either male or female, or may identify as both.

Helen Dyke is a Senior Associate in  Irwin Mitchell's Employment Team

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