Gender Identity in the Workplace
- Employment Law
- 31st May 2023
Due to societal and cultural changes in recent years, employers are increasingly involved in managing members of staff who are trans or gender non-conforming individuals. Gareth Matthews, Head of Employment, therefore explores this issue in more detail, with a focus on the relevant terminology, the legal obligations required of employers and good work practices. […]
By Julie SabbaMLP Law
Due to societal and cultural changes in recent years, employers are increasingly involved in managing members of staff who are trans or gender non-conforming individuals.
Gareth Matthews, Head of Employment, therefore explores this issue in more detail, with a focus on the relevant terminology, the legal obligations required of employers and good work practices.
So, what is Trans?
In its updated guidance materials, the Advisory, Conciliation and Arbitration Service (Acas) uses the term ‘trans’ as an umbrella term to include both:
- a transsexual person, ie an individual assigned female at birth who has transitioned or is transitioning to live as a man, or an individual assigned male at birth who has transitioned or is transitioning to live as a woman, and
- an individual with a non-binary identity, ie who identifies neither as male nor female
‘Transitioning’ or ‘gender reassignment’ is a process by which a person aligns their life and physical identity to match their gender identity.
Specific gender identity terminology
Where possible ‘non-triggering’ language should be used. Terminology in the transgender field is constantly evolving as understanding and perceptions of gender-variant conditions and expressions change. There can be differences of opinion about terms, and their acceptance can differ among people. The use of outdated language can cause offence and may in itself be discriminatory. Employers should be sensitive to this and should regularly review the terminology they use.
The starting point for many employers is therefore the use of appropriate language, so we are going to run through the relevant language and meanings:
Gender reassignment The process of transitioning from one binary gender to another; when a person takes steps to alter the outward expression of their gender so that it better aligns with their sense of how they identify themselves. For some, but not all, this will involve medical intervention to adjust the appearance so that it aligns with the gender identity. Some people take hormones or undergo surgery as part of their gender reassignment, but medical intervention is not required. It is often associated with changes to the gender role, name and pronouns. If someone adopts a new gender by changing their name, title or pronoun, and/or by wearing different clothing, altering their body language, speech or hairstyle, they have reassigned their gender.
Gender recognition certificate (GRC) A certificate enabling an individual to be legally recognised in their affirmed gender under GRA 2004. An individual does not need to possess a GRC in order to qualify for protection under EqA 2010
Transgender/trans An umbrella term used to cover a number of different gender identity labels. It is commonly used to include both ‘transsexual’ and non-binary identities. This term does not currently appear in any legislation
Transsexual A term used in EqA 2010 to describe a person who has the protected characteristic of gender reassignment. It does not specifically cover non-binary gender identities. A transsexual person may or may not undergo gender reassignment. A transsexual person identifies as a member of the gender opposite to that assigned at birth, and is defined (as set out above) as someone who:
— is proposing to undergo
— is undergoing, or
— has undergone gender reassignment
This term is now considered outdated and is being replaced by the term ‘transgender’ or ‘trans’. According to Acas, it is never appropriate to use the word ‘transsexual’ as a noun.
Other terms which are important to understand:
Bi-gender A person who considers themselves to be both male and female at different times.
Cis/cisgender Where sex assigned at birth and gender identity are congruent; a term used to break down the idea that non-trans people do not need a descriptor. ‘Cis’ derives from the latin term for ‘on the side of’. Some trans individuals find this term offensive.
Cross-dresser While anyone may wear clothes associated with a different sex, this term is typically used to refer to men who occasionally wear clothes, makeup, and accessories culturally associated with women. Replaces the term ‘transvestite’, which according to Acas is generally viewed as inappropriate and likely to cause offence.
Differences in sex development (DSD) Defined by the NHS as a group of rare conditions involving genes, hormones and reproductive organs, including genitals. It means a person’s sex development is different to most other people’s, some people may prefer the term intersex or use the term variations of sex development (VSD).
Gender dysphoria/incongruence Where the person experiences distress due to the mismatch between the sex they were assigned at birth and the gender they identify with. Conforming to society’s cultural expectations causes a persistent personal discomfort. It may accompany a desire to live in the opposite gender of birth.
Gender fluid An individual may change how they feel about their gender from time to time, eg they may identify as a woman on some days, as a man on others, or as a combination of both.
Gender identity Psychological identification of oneself. This may be as boy/man or girl/woman (the binary model), or may be one of the other identity labels
This is the term that the Women and Equalities Committee in their Transgender equality inquiry report recommended the protected characteristic of gender reassignment should be amended to.
Gender neutral A gender neutral person does not identify with any gender; they may embrace aspects of both man and woman and may possibly fall on a spectrum between the two.
Gender neutral pronouns such as they, per, zie, ze, fey may replace binary pronouns (he/she, his/her); and a gender neutral title such as Mx may replace Mr, Mrs, Miss or Ms.
Intersex The anatomy or physiology of an intersex person differs from contemporary stereotypes of what constitutes male or female. In some intersex conditions, the appearance at birth is atypical being neither male nor female. Intersex is a physical condition, as opposed to a gender identity.
Non-binary Not identifying solely with either male or female; a non-binary person may say they are neither gender, or may have some other sense of gender such as pan-gender, poly-gender or third gender.
Sex A term referring to the male/female physical development; historically judged entirely on genital appearance at birth.
Sexual orientation Sexual orientation is associated with sexual attraction between one person and another; it is a separate issue to gender identity. A transgender person may be heterosexual, gay, lesbian, bisexual or a-sexual.
Transition A series of social, psychological, emotional and sometimes medical steps a person takes to present in the gender identity they wish to take. Transition is the term used to describe the permanent full-time adaptation of the gender role in all spheres of life (family, work, leisure, society generally). The steps and timescale for transitioning will vary from individual to individual.
Gender Recognition Act 2004 (GRA 2004)
GRA 2004 provides a mechanism for someone to be legally recognised in, and gain the rights and responsibilities of, their gender affirmed through gender reassignment (ie from a man to woman, or woman to man). Obtaining a GRC leads to the issue of a new or replacement birth certificate reflecting the holder’s new gender (provided the birth was registered in the UK). An individual must be 18 years of age or older to apply for a GRC.
Where a full GRC is issued to a person, the person’s gender becomes for all purposes the acquired gender, so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.
Therefore a male to female transsexual person can bring an equality of terms claim in her acquired, female, gender from the date the GRC is issued, but (probably) only in relation to events occurring after that date.
GRA 2004, which currently only applies to those aged 18 years and older, requires applicants to satisfy the Gender Recognition Panel (a judicial body of doctors and lawyers) that they:
- have or have had gender dysphoria
- have lived in the acquired gender for at least two years prior to the application, and
- intend to live permanently in the acquired gender
Physical medical intervention is not necessary to receive a GRC.
Strict privacy requirements are set out under GRA 2004. If a person has a GRC, information about that person’s gender history is ‘protected information’. GRA 2004 makes it a criminal act subject to a fine for a person who has acquired this protected information (ie information which relates to a person’s application for a GRC or information which identifies a person with a GRC as transgender) in an official capacity (eg through a recruitment process or in the course of doing their job) to disclose information to any other person.
The offence does not apply in certain circumstances, including:
- if the individual has agreed to the disclosure of such information
- disclosure for the purpose of preventing or investigating a crime
Asking an employee or job applicant if they have a GRC, or asking to see a GRC:
- is not permitted
- could be regarded as harassment
A GRC is not needed to change one’s name, pronouns or the way one dresses at work.
Areas of Note for Employers
Terms and conditions of employment, including pay
An employer should ensure there are no terms and conditions of employment that disadvantage a person on grounds of gender reassignment, for example pay, bonus or ability to work flexibly.
An employer may be able to justify different treatment if the difference is not related to the gender reassignment, but instead to another factor such as experience or location.
Acas gives the example of a man needing to take leave for medical assessments as part of his transition, who is told he will not get paid for the time off. This is likely to be discriminatory, as the individual would have been paid if he were off work sick or injured, or having treatment for a health issue.
Recruitment and selection
Advertisements and application forms
There is no requirement for a transsexual job applicant to tell a prospective employer that they have changed gender, either before or if they are offered the job. Similarly, we suggest that a transgender job applicant should not be expected to comment on their gender identity.
An employer should:
- use gender neutral language in job advertisements, eg ‘they’ instead of ‘he or she’
- consider if it is necessary for a job applicant to identify their gender and, if not:
◦avoid asking for a title (eg Mr, Mrs) if possible
◦make providing a title optional, or
◦include ‘other’ or Mx as an option
- be sensitive to the possibility that, where a background screening company is struggling to find accurate information, the applicant may have changed their name and/or gender
- be aware that a trans applicant may have forms of documentation which do not tally, eg passport, qualification certificate, written references
- consider appointing a named point of contact within the organisation for any potential trans applicants or issues
An employer should ensure that if it is necessary for an applicant to provide previous names, the request is dealt with sensitively, and any information provided is stored securely.
The GEO (Government Equalities Office) guidance on recruiting and retaining transgender staff suggests that:
- recruiting managers could receive training and ongoing refresher training on best practice, the employer’s recruitment and equality policies and the law
- managers need to be able to ‘sell the benefits’ of the job in terms of the support that is available to all staff, eg through an inclusive culture and networks
The GEO guidance also reminds employers that:
- candidates may not wish to disclose their trans status at interview and it is not a question that should be asked
- it is best not to assume someone’s gender simply by their appearance
- in some circumstances, candidates may advise a recruitment panel that it is their intention to transition. In such circumstances recruiting managers could:
◦thank the candidate for their openness
◦explain that if appointed the employer will support the individual
◦remain focussed on the purpose of the interview, ie does this person have the skills and experience for the job
Promotion and training
An employee must not be discriminated against in promotion opportunities because of gender reassignment. It would, for example, be discriminatory to:
- turn down an employee’s application for promotion because that employee is proposing to transition
- dissuade a trans employee from applying for promotion
- take into account gender assignment-related absences
- not promote an employee because they reported a case of harassment of a transgender colleague
Similar considerations will apply in relation to training opportunities; it would be discriminatory to withhold training from an employee because of their own gender reassignment or perceived gender reassignment, or the gender reassignment of someone they are associated with.
Job adaptations and capability
A transitioning employee may wish to make a temporary, short term change to working arrangements during or shortly after the transition process, such as:
- a period away from client-facing roles
- working from home
- changing shift patterns
An employer cannot insist that changes to working arrangements take place, and indeed the Acas archived guidance suggests that doing so may amount to direct discrimination; any change must be with the agreement of the transitioning employee.
An employer should offer a gender neutral uniform if possible. Where dress codes are different for men and for women, it may be necessary to allow some flexibility in the dress code to accommodate the process of transitioning from one gender to another or for others who require it, for example:
- where a uniform requires trousers to be worn by both men and women, a trans woman may prefer to wear a skirt so that others are clear about her gender status
- flexibility on hair and style may be necessary at the start of a transition
There should also be flexibility for:
- those who live androgynously, ie those who have a neutral gender expression in terms of dress and would not be comfortable in a strictly feminine or masculine mode of dress
- those who present sometimes as one gender and sometimes as another, by providing both male and female uniforms for that person – another common flexibility is where an employee has an ID lanyard which allows them to present their gender identity on any given day.
Case law and conflicting rights
A case of obvious direct discrimination was laid bare in the case of de Souza…v Primark (2018).
Here, the claimant brought claims for direct discrimination and harassment under the Equality Act 2010 (EqA 2010) in relation to gender reassignment. She was a transgender woman, who had lived as a woman on a permanent basis for several years. At the time of her employment with the respondent, her official first name on her passport and national insurance was still her birth name ‘Alexander’, although she went by the name ‘Alexandra’.
She began work as a retail assistant at a branch of Primark. She had used her female name Alexandra on her job application, but used her passport as identification at her interview, at which she explained that she was transgender and wanted to be known by her female name.
At her induction, she identified herself using her passport, but told the respondent’s HR representative that she was transgender and presented as a woman called Alexandra. Primark had a system of ‘legal’ name and ‘preferred’ name, and the claimant’s legal name, rather than her preferred name, was put on the rota sheet. This meant that several of her colleagues were aware that she was transgender and, on several occasions, she was subjected to discriminatory treatment because of her transgender status.
This included being ‘outed’ by her supervisor, who called her Alexander/Alexandra and laughed at her, and who continued to refer to her as Alexander even after being corrected. The claimant’s colleagues made insulting or other upsetting comments in front of her. On one occasion, a colleague sprayed scent near the claimant and said it smelt like a men’s urinal, another told an electrician that there were no ladies in the female lavatory even though she knew the claimant was in there, and others said she had ‘evil inside her’ and that she was ‘a joke’.
The claimant resigned because of the behaviour and the respondent’s failure to deal with it.
The claimant was successful and was awarded £47,433.03 in damages to compensate her for her past and future loss of earnings and loss of pension (£19,872.86), injury to her feelings (£25,000), and interest (£2,560.17).
The conflicting rights of philosophical belief (ie gender critical beliefs) and ‘transgenderism’ came before the EAT in April 2021 in Forstater v Centre for Global Development. #istandwithmaya
In Forstater, the claimant was a researcher and writer who entered into consultancy agreements with the respondents. Ms Forstater wrote tweets concerning the proposed changes to the GRA 2004 which would allow people to self-identify their gender. Some of the respondents’ staff raised concerns about the tweets, alleging they were transphobic. When Ms Forstater’s consultancy positions were not renewed, she contended that the reason was the gender critical opinions she had expressed. She brought employment tribunal proceedings alleging direct discrimination on the grounds of a philosophical belief, and indirect sex discrimination.
Judgment from the EAT concluded that the belief that sex is biologically immutable, that there are only two sexes (male and female), that men are adult males and women are adult females, and that it is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’, is a philosophical belief protected under EqA 2010, s 10. The landmark decision overturned the first instance London Central Employment Tribunal decision which held that the particular belief that a person’s ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’, and that being female is an immutable biological fact, rather than a feeling or an identity, is, in its absolutist nature, a belief that is incompatible with the fundamental rights of others and was not a belief worthy of respect in a democratic society, and accordingly was not a philosophical belief protected under EqA 2010.
There is, however, a limit to the protection offered by holding a gender critical belief.
In June 2022 the EAT handed down the first post-Forstater claim involving alleged discrimination in relation to gender-critical beliefs. In October 2019, in Mackereth, a Christian doctor who refused to address a transgender person by their chosen pronoun had unsuccessfully argued in the employment tribunal that his dismissal amounted to discrimination on the grounds of his religious belief. The tribunal held that his belief (a lack of belief in transgenderism and conscientious objection to transgenderism) was incompatible with human dignity and conflicted with the rights of trans individuals. On appeal, the EAT overturned the tribunal’s primary finding that the claimant’s relevant beliefs did not satisfy the Grainger criteria.
However, the EAT concluded that although the claimant’s gender-critical beliefs were protected in law, a policy operated by the DWP compelling its health and disabilities assessors, including the claimant, to use the preferred pronouns and mode of address of trans service users when conducting assessments of them for receipt of disability benefit was justified in the circumstances of the case, and hence the respondent had not acted unlawfully against him.
Having training and progressive policies in this area was highlighted in the case, Taylor v Jaguar Land Rover, the employment tribunal considered for the first time the application of EqA 2010, s 7 to non-binary or gender fluid individuals. The claimant in this case was a longstanding engineer working in Jaguar Land Rover’s plant who from 2017 informed their employer that they were transgender, thought themselves to be on part of a spectrum, transitioning from the male to female gender identity, and that they self-identified as gender fluid and non-binary and had no plans for surgical transition. From that time they usually dressed in women’s clothing as a result of which they were subjected to abusive insults and jokes, had issues regarding which toilet facilities they should use and had been given inadequate support by HR and management.
It’s clear that the first step for employers is to ensure that staff at all levels, but especially management, are trained and therefore aware of this issue; equipped with the appropriate knowledge, language and practical tools to ensure they can deal with the issue confidently and sensitively.
A few common practical issues that we are asked about:
- toilets – depends on size and resources – from 3 sets, ‘men, women and gender neutral’, to one or two single cubicles with locks, that are not specifically designated;
- accurate internal records, updated to reflect the appropriate gender identity of staff;
- signage (a name badge – 2 name badges); and
- email sign off with pronouns ie she/her, they/their, ze etc
Essentially, communication is key and you should be guided by the employee’s concerns and suggestions, balanced against the well-being of all staff (if, indeed, there is any conflict between the 2, which there may well not be).
About the expert
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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