Employment Law & Transgender Rights

Posted:19th November 2020

The last 16 years has seen the development of a much greater awareness of gender identities. This has brought about a development of the legal rights and protections provided to individuals who do not conform to the gender binary or do not identify as the gender they were assigned at birth.

For some their gender presentation may change and they will not see gender as a fixed entity. For some people, they will identify as genderfluid, which can mean that sometimes they present as more masculine or more feminine, or neither, but they still identify as genderfluid, although the meaning can vary between individuals. This may lead some people to the decision to change their personal identity or their body to better fit with their gender identity.

The term Transgender or Trans is used to describe any individual who does not identify with the sex they were assigned at birth, and any Employer of individuals identifying as transgender should understand the issues and sensitivities involved, (in the same way as Employers have done with employees who may be seen and see themselves as typically male or female).

The 2004 Gender Recognition Act was introduced to recognise that the traditional perceptions and beliefs around a person’s gender do not always correspond with what was assigned to them at birth i.e. their biological sex. The Act enables individuals to obtain a Gender Recognition Certificate (‘GRC’), the legal effect of which is to change their legal gender from male to female or vice versa and also enables the individual to apply for a ‘new birth certificate’ if they want one.

The 2010 Equality Act provides the main protection of Transgender rights in Employment Law and ‘gender reassignment’ just as ‘Race’ ‘Age’ or ‘Pregnancy’ is defined as a protected characteristic which enables those who have been treated less favourably because of that characteristic to claim that they have been unlawfully discriminated against. The definition of gender reassignment is considered by many as too narrow because it does not recognise the full range of gender identities as mentioned above and it may well be that in time, the term ‘gender identity’ replaces it.

Gender Identity and the Workplace

Any Employer committed to promoting equality and diversity should ensure that it and its key staff have an awareness of Gender Identity issues when recruiting and employing staff. Employers should ensure that their Equality and Diversity Policy and procedures apply to Gender Identity. Those Employers employing Transgender individuals who have spoken about their gender identity should engage in open discussion about what steps can be taken, if needed, to enable them to settle in successfully. This may include discussing how they would like to be addressed or discussing specific issues arising from their job.

Individuals should be allowed the choice of which bathroom to use at work but it is not necessary to provide separate facilities.