Gender identification and staff

Trans campaigners are hoping for a simpler path to legal recognition of gender identification change following the government's announcement that it is reviewing the process. Elsewhere, the High Court has set an important precedent on the right to respect for non-gendered identity, marking a milestone in civil rights litigation on gender identity and LGBTI+ rights.

Public awareness of gender identification has increased significantly since former Olympian and reality star Caitlyn Jenner took the issue mainstream in unveiling her transition in 2015. Recently, producers of the Supergirl TV show announced a transgender superhero would feature in the cast. For employers, there is a need to keep up to speed with this fast-changing landscape to ensure policies do not inadvertently discriminate on grounds of gender identity, whether through personnel protocols, toilet provision or dress codes.

The Equality Act 2010 protects trans people from discrimination, and guidance for employers recommends an inclusive workplace, with a supportive environment that means staff feel able to declare any change in gender identification. The Government has estimated there are between 200,000 and 500,000 trans people in the UK, but research suggests that some 2 in 3 of all trans people have been afraid to be open about their gender and last year LGBT charity Stonewall reported that 41% of trans people had experienced a hate crime because of their gender identity in the previous 12 months.

One of the first challenges for any HR team may be in understanding how to deal with a change in an individual's self-identified gender. The answer is that employers need to handle the news carefully, find out how the individual wants to be addressed by colleagues, and when they would like to announce the transition. Then, post-transition, make sure all records relating to that employee have been updated to the new name and gender.

Steven Judge Partner and employment law specialist commented: "There is no need for official paperwork to be in place before an employer recognises a gender shift. Trans people can change their name and gender for almost all services without changing their legal gender, simply by asking for the change to be made, including passports, driving licences and their employment records.
"It is only if they wish to get married or request appropriate pension provision that they must have a new birth certificate, which requires a Gender Recognition Certificate to be issued under the Gender Recognition Act 2004. It is this process that the Government is looking to reform, to make it less intrusive and bureaucratic when trans people apply for legal recognition of their acquired gender."

Experts advise that it's worth checking that processes don't take a binary approach to gender, as increasing numbers are asking for a gender-neutral option in form-filling. Recently the process of applying for a passport was challenged on these grounds by long-standing campaigner Christie Elan-Cane.

Although the case was dismissed, the judgement marked a significant development in the law in this area as the Court recognised that the European Convention on Human Rights (Article 8) guarantees a right to respect for non-gendered identity. This means the Government must consider the rights of non-gendered, intersex, trans and non-binary people, who do not identify as exclusively male or female, when forming policy in future.

Steven added: "Gender neutral approaches can be useful, including for toilet provision in both the workplace and customer facilities. Single-occupancy toilets that are simply marked with a generic WC sign can be used by anyone, whether they are comfortable using a toilet in gender-specific usage or not, although no one can be forced to use a single-occupancy toilet where gender specific facilities are also available. It must be their choice, as under the Equality Act 2010 anyone who identifies themselves as a specific gender can choose to use the appropriate single-sex facilities."

The Act allows service providers to refuse a trans person access to single-sex services if it may be detrimental to others and the review of the Gender Recognition Act will not affect women-only spaces and services such as safeguarding processes, as currently used in refuges and healthcare services. Neither will it change any protected characteristics in the Equality Act relating to gender, religion and disability.

Protected characteristics are likely to be relevant also in the context of dress codes for trans workers. Earlier this year, the Government Equalities Office (GEO) issued long awaited guidance on workplace dress codes. Despite a high-profile petition by temporary worker Nicola Thorp, who was sent home in 2016 for refusing to wear high heeled shoes, the new code stops short of harsh punishments, saying: "dress policies for men and women do not have to be identical. However, the standards imposed should be equivalent. This means there must be similar or equivalent rules laid down for both male and female employees". The guidelines also say that "it is best to avoid gender-specific requirements" going on to remind employers that "transgender employees should be allowed to follow the organisation's dress code in a way which they feel matches their gender identity".

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This is not legal advice; it is intended to provide information of general interest about current legal issues.