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Trans rights in the workplace

This guidance was originally published by the TUC. It covers:

Background to trans issues

Transsexual people are those who wish to live as a member of the opposite gender to that to which they were assigned (a condition known medically as gender dysphoria).

They are thought to represent between about one in five thousand and one in ten thousand of the population.

In recent years, new legislation has recognised the stigma, prejudice and discrimination that trans people often suffer, and has established clear legal rights for transsexual people.

TUC policy is to campaign for equal treatment for all workers, and the rights of trans workers have been specifically recognised with the decision to extend the remit of the existing TUC structures for lesbian, gay and bisexual workers to cover trans people as well.

This guidance for union officers and representatives is published to advise on the new legal situation, and on good practice in the workplace.

The basis of a trade union approach is that all trans workers, regardless of whether they have decided to go through the process of medical reassignment, and regardless therefore of their formal legal standing, should be treated with equal respect.

Definitions

The words to describe trans issues are often used imprecisely, and the use of wrong terminology can cause distress.

Therefore it is important that unions are aware of the correct terms.

The Gender Trust, a charitable organisation supporting trans people, offers the following definitions.

Gender

Gender “is expressed in terms of masculinity and femininity. It is largely culturally determined..”

Intersexuality

Intersexuality (sometimes known as hermaphroditism) is where “the physiological sex is ambiguous and may or may not be accompanied by various degrees of gender dysphoria. The condition may arise due to certain congenital disorders or hormone imbalances in the foetus or placenta.”

Transexual

Transsexual: “A person who feels a consistent and overwhelming desire to transition and fulfil their life as a member of the opposite gender. Most transsexual people actively desire and complete Sex Reassignment surgery.” However, it is important to note that not all transsexual people will go through surgery, sometimes because they cannot, for medical reasons.

Transgender

Transgender. “A term used to include transsexuals, transvestites and crossdressers. A transgender person can also be a person who, like a transsexual – sometimes with the help of hormone therapy and/or cosmetic surgery – wishes to live in the gender role of choice, but has not undergone, and generally does not intend to undergo, surgery.”

The process of medical treatment to enable transsexual people to alter their bodies to match their chosen gender identity is known as gender reassignment.

For the purposes of this guidance, and in order to ensure an inclusive approach, the word trans is used to cover both transsexual and transgender workers. This is a term that may be used without causing offence.

Transvestite

Transvestites are people who dress in the clothing of the opposite sex, but will not normally wish to change their physical characteristics. They are not covered by the legislation.

Changing gender – the process

The process of changing gender is slow and arduous, with significant consequences beyond the purely medical for the individual undergoing it.

These facts may have significant consequences in the workplace, for which union representatives will need to be prepared.

Here is an outline of the stages that most transsexual people will have to go through before achieving their desired gender.

However, the timings of the various stages vary significantly between individuals, and each situation will be unique.

Those undergoing treatment through the NHS will begin by receiving specialist medical advice and diagnosis. They will be expected to commit to the “real life test” (see below) before hormones are prescribed. Those being treated privately may be prescribed hormones before committing full time to the real life test.

At whatever point they begin the real life test, this is the most likely time when they will have to deal with issues around their gender role at work.

The next stage is that the individual begins to live as a member of the new gender, and may have records changed to reflect this (such as driving licence and passport).

The period during which the person is living and working in their new gender is called the “real life test”.

One year is the minimum period for the real life test recommended under the international standards of care, however NHS patients are likely to be expected to have a minimum of two years and often more.

Finally, for the individual intending, and able, to undergo surgery, after one or two years of hormone therapy, the person undergoes corrective surgery to complete, physically, the transition from the previous to the opposite gender. The timing of this varies according to local funding and waiting lists.

The process can be very stressful requiring support and sympathetic handling from all concerned, and there is an obvious need to adopt the right approach in the workplace where the transition can have significant impact both upon the individual and upon colleagues.

The legal position

Following a ruling against the UK in the European Court of Human Rights (P v. S and Cornwall County Council, 1996), the Government introduced the Sex Discrimination (Gender Reassignment) regulations 1999.

These regulations extended the Sex Discrimination Act 1975 and made discrimination in employment and training on grounds of gender reassignment illegal as a form of sex discrimination.

This law protects a person who “intends to undergo, is undergoing or has undergone gender reassignment” and includes those preparing for such medical treatment.

In November 2003, and following a further ruling in the European Court (Goodwin v. UK, 2002) the Government introduced the Gender Recognition bill into Parliament.

The bill had the purpose of enabling transsexual people to gain full legal recognition in their acquired gender, for example the right to marry in their new gender, and to have their birth certificates altered to reflect their new gender.

The new law enables those who comply with certain conditions to obtain a Gender Recognition (GR) certificate that confirms their new gender with the rights and responsibilities legally attached to that gender.

The Gender Recognition Bill completed its progress through Parliament (June 2004) and took effect in April 2005. It applies to England, Wales, Scotland and Northern Ireland.

The legislation covers all those with a GR certificate. The condition for obtaining this is that the individual has lived in their new gender for a minimum of two years and intends to do so permanently, and can produce medical evidence to confirm this.

A Gender Recognition panel is responsible for issuing the certificate. Anyone currently married, however, will only receive an interim (and time-limited) certificate, as the law will not allow the marriage to continue after the change of gender.

The consequence of the legislation is that transsexual people are entitled to full equal treatment in their acquired gender and become that gender legally for all purposes.

The achievement of this legal equality will need to be translated into equal treatment in the workplace for trans workers. However, it is important to recognise that all workers who identify as trans, and not just those who decide to go through the formal process of obtaining legal recognition for changing gender, should be entitled to the protection offered by a union, and to the appropriate measures to be negotiated with the employer.

Anyone holding a Gender Recognition Certificate also acquires new privacy rights. Anyone who acquires such a person’s trans history “in the course of official duties”, including a trade union representative, will be subject to prosecution if they pass that information to a third party (for example, the employer or the union head office) without the consent of the individual affected.

The rest of this guidance will deal with practical issues.

Workplace issues

Underlying principles

In any situation where a trans member approaches the union for support, one principle needs to underlie the approach adopted by union representatives.

At every point in the process, the steps to be taken must be agreed with the member, and the maximum confidentiality must be observed for as long as the member wishes that to be the approach.

Each individual situation will be different, but requires the same respect for the wishes of the member if their transition to a new gender is to be brought about successfully in a workplace.

Developing a plan with the individual covering some of the issues listed here will be a good approach, and must necessarily include taking these to management (while preserving confidentiality) to secure agreement with the proposed steps.

Some of the issues likely to arise at the point of transition are:

Remaining in post or redeployment?

In larger workplaces, the member may wish to transfer to another position at the point at which they adopt their new gender, and it is important to discuss how to manage this with management in order to achieve the best outcome.

Early contact with an appropriate manager, or Human Resources departments, will be necessary, and this may involve identifying a specific individual with whom to plan the transition process, in order to limit the number of people who know (should the individual want this approach).

Support during the transition: information and training of others

Whether or not the individual remains in the same post, a plan for support during the transition and after will need to address such questions as what information and training will need to be provided for managers and colleagues.

It will often happen that the person undergoing transition will wish to take leave before returning to work in their new gender. This will provide the opportunity to brief managers and colleagues and to ensure that management stress the need for proper treatment of the worker.

Time off for treatment

The plan will necessarily include how to deal with the time off needed for medical treatment.

There is no standard length of time for such treatment, which varies with the individual, but might be some months.

Trans people will need to take time to attend a Gender Identity clinic at intervals up to and beyond surgery, and also sometimes for other aspects of transition such as hair removal and speech therapy.

It is important that as a minimum the same policy is applied as for sickness absence, and if it is possible to obtain special leave for this period, that would make the stress of that time easier to manage.

The changeover: records

The plan will need to identify the point at which the individual’s new gender is formally established in terms of the employer’s personnel records, and any consequent alterations (for example, security passes, the individual’s choice of name for directories etc).

The right of the individual to maintain the confidentiality of their previous identity needs to be secured as part of this stage.

Many employers keep individual records for long periods and it needs to be organised such that access to past records that reveal the individual’s previous gender identity is strictly controlled and limited on a “need to know” basis.

The changeover: other workplace issues

It would be good practice for an employer with a dress code to allow flexibility during transition, and to respect the individual’s wishes as to when he or she was comfortable to change into the form of dress appropriate for their new gender.

Agreement needs to be reached on use of toilets and changing facilities. Here, it will be appropriate to agree with managers that the individual starts to use the facilities for their new gender at the point where they begin to live in that gender.

Other approaches, such as requiring the trans person to use the toilets for disabled workers, will not be appropriate unless, of course, the individual is disabled. Clearly, at this particular point, it will be necessary to explain the situation to work colleagues as well.

Harassment

If the employer does not already include gender identity among the grounds covered by a policy against harassment, it will be important at an early stage to ensure that this is negotiated.

Trans people may be particularly vulnerable to abusive and harassing behaviour and it must be made clear to all that this will not be tolerated.

Pensions

Union representatives may need to negotiate to obtain the best outcome for someone who has changed their gender and remains part of an employer’s pension scheme.

At a minimum, the individual should be treated as a member of their acquired gender from the date of transition. It may be appropriate to seek the advice of the union’s pension experts to ensure that the most beneficial outcome is negotiated.

Disclosure, references

As part of the overall approach of respecting the right of the individual trans worker to decide what they wish to be disclosed about their present or previous identities, unions need to negotiate with managers to ensure that no such disclosure is made without the express permission of the individual.

This applies in particular to the provision of references if the individual decides to leave for another employment.
There will be further issues that arise subsequent to the transition and/or the obtaining of a GR certificate.

Record retention

As considered in above, long-standing employment records may well reveal the trans person’s previous gender identity, and where records are retained over a long period issues arise over who should have access to these records and what should be done in the event that someone’s previous gender identity is revealed without the person’s permission.

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