Transgender Employees: Five things employers need to know

Leon Deakin, Irwin Mitchell.
Leon Deakin, Irwin Mitchell.

Here, Leon Deakin of Irwin Mitchell LLP outlines five things employers need to know about employing transgender staff.

1. Encourage disclosures

Transgender staff may be protected from discrimination even if they have not started (or do not intend to start) medical treatment to change their gender identity

A person will be protected against discrimination under the Equality Act 2010 if he or she is proposing to undergo, is undergoing or has undergone a process to change their gender identity.  The process does not necessarily have to involve medical intervention (commonly referred to as a sex change) 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.

2. You must keep details of an employee’s birth sex confidential

If you employ an individual who has already transitioned most of your staff and managers will be unaware of their birth gender identity.  You must keep this information confidential and take steps to ensure that any records which refer to their gender identity at birth are retained in a safe place and are only accessible by specified members of staff.

Any information relating to an individual’s gender history will constitute sensitive data under the Data Protection Act 1988 which can only be processed for certain specified reasons.

Also 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.  This applies where they obtained the information in an official capacity (such as during recruitment).

3. The information that you hold on file must reflect the individual’s current name and gender

Any material that you need to retain that is related to the person’s trans status, such as records of absence for medical assistance, birth certificate and documentation of name change, should be placed in a sealed envelope and attached to a new file with instructions such as, ‘Confidential: personnel manager only’. The personnel manager should allow staff to view the information only if they require it to perform their specific duties and with the permission of the person concerned.

You should also make sure that any changes to an individual’s name and gender are reflected in your electronic systems and databases to prevent staff being inadvertently “outed” due to old data references.

4. Transgender staff should be able to choose the toilet facilities they wish to use

If your organisation has single sex facilities you should allow a transgender member of staff who has started to live in their acquired gender role to use the facilities appropriate to that gender.

This can be a particularly contentious issue and must be managed appropriately and sensitively.  It is likely that, with the trans employee’s consent, you will need to raise awareness of the issue.  Other members of staff should be aware that objecting to a trans colleague selecting their toilet facilities will be considered to be unreasonable and potentially discriminatory.

5. Transgender staff should be given reasonable time off to prepare for and undertake reassignment surgery

You should not treat any member of staff who requires time off to undertake gender reassignment less favourably than any other member of staff wishing to take time off for medical or physiological reasons.

There is no minimum or maximum time which must be allowed for absence for treatment but it is good practice for employers to discuss with transsexual staff how much time they will need in relation to the gender reassignment process and accommodate those needs in accordance with their normal practice and procedures.

Leon Deakin is a senior associate in the employment team at national law firm Irwin Mitchell.





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