International Trans Day of Visibility: are trans people treated fairly (and lawfully) within and by your business?

7 minute read
29 March 2018


31 March is International Trans Day of Visibility (TDoV). This is an annual worldwide event which aims to raise awareness of trans people, the issues they face and to promote equality.

As with any issue which challenges traditional social and cultural norms, change and acceptance can take time. TDoV should prompt us all to pause, and look at our own working practices. Are trans people treated fairly in the workplace? Do the facilities and services offered by an employer, enable them to bring their whole selves to work?

In 2016 Stonewall published useful, practical guidance to help employers build a trans inclusive workplace. However, a recent Employment Tribunal case in which a multinational retailer was found to have discriminated and harassed a transgender employee in breach of the Equality Act 2010, brings the reality of workplace relations into sharp focus. The Tribunal criticised the retailer's "complete lack of understanding from the beginning [of the employment relationship] as to what was required" and suggested that the discrimination and harassment that followed could have been prevented had proper systems been in place.

A recent Stonewall Report makes clear that this is not an isolated incident, with almost fifty per cent of transgender and non-binary people hiding or disguising that they are LGBT for fear of discrimination in their workplace and with one in eight reporting they have been physically attacked by a colleague or customer.

It is well-known that people work best when they feel comfortable being themselves, as well as the fact that diversity improves business performance. Here we take a look at the protection afforded to trans people at work and when using services and set out the practical steps you can take to improve your business' focus on trans equality. For a clear explanation of terms used to describe the gender spectrum, check out the Stonewall glossary .

How are trans people protected under the Act?

Trans people fall within the 'protected characteristic' of gender reassignment under the Equality Act 2010. Section 7 states that a transsexual is a person proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This does not require a person to undergo medical gender reassignment procedures.

The Act makes it unlawful for a trans person to be subject to 'prohibited conduct', which includes direct and indirect discrimination, harassment and victimisation. This protection begins when someone applies for a job or a service you offer, through employment and service delivery to termination of the relationship. As an employer or service provider, your business can be held liable for the acts (or failures to act) of your staff so read on to find out what you can do to ensure the behaviour of your teams is on the right side of the law.

Action points for employers and service providers

  • Think about how you address your staff, service users and customers - they may not identify with the gender you expect them to so consider using gender neutral pronouns such as "they" - take your cues from the person you are addressing or ask them their preferred pronoun.
  • If you require your service users and customers to provide ID, give them the option as to which form of ID they provide - a birth certificate may not record the gender a person identifies with whereas a driving licence or passport might.
  • Some of your service users and customers may not identify with titles such as Mr, Mrs, Miss or Ms - so if you require service users and customers to give a title, give them the option of using the gender neutral title of Mx or other.
  • If you know someone is trans, avoid outing them. Where a person holds a gender recognition certificate (which is optional), it’s a criminal offence to reveal their gender history so be careful not to reveal a previous gender or name unless they have agreed such information can be shared.

Specifically for employers:

  • Identify someone or a group of people who staff members can confide in about gender related issues - consider setting up an LGBT staff network group and appointing a trans rep who has knowledge of gender identity issues.
  • Treat members of staff who are taking time off to transition fairly. The Act provides protection against discrimination in taking time off to transition so think about how you would deal with absences related to this such as sick leave or leave for medical treatments - if you would usually pay staff during this time, be careful not to treat a trans member of staff less favourably.
  • Adopt a policy for members of staff who are transitioning. The Employment Tribunal recently recommended that the retailer found to have discriminated against a trans member of staff concerned adopt a policy to deal with transitioning staff members to include the protection of confidential information, entries on personal records, work badges and rotas. The Tribunal also recommended agreeing a plan with a transitioning staff member going forward.
  • Think about use of staff facilities. In a recent Stonewall Report, almost half of trans people stated that they do not feel comfortable using public toilets - staff should feel as if they can use the facilities at work that best matches the gender they identify with.

See Stonewall's Report for more information on trans inclusion for service users and customers.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.