Gender reassignment in the workplace and pension issues

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Siobhan Bishop: Hello and welcome to our podcast where we're covering gender reassignment in the workplace. I'm Siobhan Bishop a Principal Associate in the Employment, Labour & Equalities team and I am joined by Liz Wood a Principal Associate working across both our Pensions and Employment team in the Combined Human Resources team, who is here to talk about some of practical considerations for employers and the impact of gender reassignment on pension provision, which I know she's had quite a few queries on recently.

So gender reassignment is a protected characteristic under the Equality Act and this protection covers transsexual people. The protection against discrimination is wide and covers from pre-employment situations, such as a job applicant, to employees and workers and even post-employment relating to for example for an appeal against a dismissal or refusing to give somebody a reference. There is also protection in terms of the provision of goods and services but we're not going to concentrate on that today we're looking at the employment rights side. So Liz what does that mean in terms of protection under the Equality Act exactly, how wide is it and who is covered?

Gender reassignment and the Equality Act. Who is covered and how wide is the protection?

Liz Wood: Thanks Siobhan, well the first question to answer is whether people are included in the strict definition under the Equality Act and there is quite a lot of terminology when we're looking at trans inclusion in the workplace.

Strictly, under the Equality Act 2010, it's transsexual people, so people who are experiencing a gender identity which is inconsistent with their assigned sex and want to permanently transition to the gender with which they identify, that's the category (the protected characteristic) we are talking about. Although lots of people tend to talk more nowadays about transgender or trans the Equality Act is, I think, a little bit out of date now so that's talking about transsexual people and specifically under Section 7 of Equality Act, this is talking about people who are proposing to undergo, are undergoing or have undergone a process or part of a process for reassigning a person's sex by changing physiological or other attributes of sex.

So actually that's a wide definition and it doesn't mean that somebody has to have had medical procedures so, for example, hormone treatments or surgical intervention in order to fall within that definition. It can include somebody who has simply grown their hair long, for example, if they're a trans male and, what I mean by that is, someone who is assigned male at birth but has transitioned or is transitioning to female. If that individual has grown their hair long then she would be likely to gain protection under the Act because that refers to the attributes of sex that's contained in the definition in Section 7 of the Equality Act. What is interesting as cultural mores change is the fact that we increasingly are seeing lots of people who recognise themselves as non-binary, so they are not necessarily considering themselves to be male or female or they might be gender fluid from day to day, and strictly speaking under the Equality Act, non-binary people aren't necessarily protected although there's a question around whether they might be protected by virtue of protection by perception. That is people thinking in the workplace, for example, that they are transsexual, whereas they're actually non-binary, but even if that perception is there, they may gain that protection.

Interestingly, I think it's one for employers to watch out for, there are relatively high rates of mental illness associated with gender dysphoria that trans people can experience. It is understandable if you take a step back and think about that the enormous changes that people might have to go through in order to move or transition from one gender identity to another. It may well be that we might need to think about disability discrimination protection as well as that might be available to some trans people, not all, but it might be worth considering.

One final point that is also worth mentioning is just to not get confused between sexual orientation protection and gender identity. Sometimes people assume that gender identity and sexual orientation are the same thing, they're not. A trans person could be homosexual, could be heterosexual, could be bisexual but there's no rule of thumb there at all they're entirely separate things.

Siobhan: Good, that's really helpful thank you. So let's look at the legislation and the Equality Act which makes it unlawful for a transsexual person to be subjected to prohibited conduct which includes direct and indirect discrimination, harassment and victimisation. Now can you give some examples of direct discrimination first in this area?

Gender reassignment and direct discrimination under the Equality Act

Liz: Yes, in terms of direct discrimination, a really good example that we've seen recently was in relation to a large retailer where a trans women was applying for a Christmas job in Northern Ireland and during the interview process she felt that the whole tenor of the interview had changed once it become apparent that she was transgender and afterwards she got an email with essentially a tip off suggesting that the reason she'd not got the job was because she's transgender. She bought a claim the retailer has recently settled for £9,000 without any admission of liability but I think it's a really interesting example of how even before the start of an employment relationship transgender protection can kick in. Other examples of direct discrimination might be a decision to perhaps re-deploy someone, for example, to an non-client facing role if the employer has found out that they intend to transition or, for example, to offer them worse terms and conditions or deny them contractual benefits resulting from their transgender status.

Siobhan: So these are very topical and they are quite clear examples and it can be a lot harder to recognise indirect discrimination, these types of issues relating to gender reassignment have not arisen before. So do you have some examples of when that might occur?

Gender reassignment and indirect discrimination under the Equality Act

Liz: Yes, well all we are looking for is a provision, criteria or a practice applied equally across the board in an employer's workplace but it just might put that transsexual person for the purposes of the Equality Act at a disadvantage and where the employer can't objectively justify that treatment. So I think a really good example is seen in the ACAS guidance in relation to trans inclusivity in the workplace and that talks about where an employer might require two forms of ID for workers going on trips abroad and for a trans individual that might be very difficult, for example, to provide that second form of ID in the form of, for example, a birth certificate and they may not want to disclose the fact that they had a different gender assigned at birth. So in that example, ACAS recommends that to avoid a claim of indirect discrimination the employer should have ways of allowing an alternative form of additional ID, for example, a driving licence, otherwise the employer is likely to risk indirect discrimination claims from trans employees.

Siobhan: OK and you've touched upon birth certificates there and I'd like to go back to that in a little bit more detail because a birth certificate must record a person's gender. However a person who is at least 18 can apply for a legal recognition of their acquired gender and be issued with a gender recognition certificate. Can you fill us in about that?

Gender Recognition Certificate

Liz: Yes, so under the Gender Recognition Act 2004, which came in in 2005, this allows people, if they meet certain criteria to apply for this gender recognition certificate (or GRC) and that allows a person to get a new birth certificate showing their affirmed gender, so the gender that they've transitioned to. So this is the formal legal route to recognise a gender reassignment. But I should stress that there's no requirement for someone to have a GRC and an applicant for a GRC doesn't have to have had reassignment surgery. I'd also note that it's a pretty expensive and demanding process so although this has been around since 2005, fewer than 5,000 people in the UK actually have one of these GRC's. So I wouldn't place too much significance by whether someone does or doesn't have one of these from an employer's perspective and also employers really shouldn't be asking applicants whether they have one of these.

ACAS recommends that employers simply assume that the person does have one. Really importantly and really exceptionally in an employment law context, under Section 22 of the Gender Recognition Act, it's a criminal offence to disclose someone's gender history and previous name and gender. So that's really important to note and although as far as I'm aware there've been no prosecutions under that section, so far, it means it's absolutely critical that a trans person's confidentiality is preserved when they're in the employment context. So even, for example, a HR manager telling colleagues a trans persons previous name and gender is likely to fall foul of that aspect of the Act.

Siobhan: Thanks Liz that's really important to recognise and be aware of. So let's move on now to look at gender reassignment in the context of pensions which, as I said, I know is generating a lot of interest and queries from employers who are grappling with some of these issues. So the general principle for pensions would usually be that pensions are calculated by reference to the assigned gender on a system. So how can this work for someone who has since then changed gender?

Gender re-assignment and risks when calculating pension entitlement

Liz: Yes, we're definitely getting lots of interest in this and it's particularly coming up in relation to defined benefits pension schemes. These are the more traditional types of occupational pension scheme and, although many employers have closed these types of schemes, the issues remain because there'll be many members who are deferred members who haven't taken their benefits yet. If those members have a trans status where at some point they have transitioned or are transitioning to a new gender, that can raise difficult questions for pensions managers and those running pension schemes. How do you calculate that member's pension benefits taking into account when that individual changed from one gender to another? The reason why that's particularly difficult is because there are essentially two layers of potential discrimination that we're looking at here.

For occupational pension schemes, there was a really important decision in 1990 which said that male and female members of pension schemes must be treated equally. So that's kept pensions lawyers busy over many numbers of years trying to sort that out because in the past male and female members were treated differently.

Also you then have that second layer of considerations in relation to a trans person because for periods of pensionable service they may have had some periods treated as a male and some periods might be treated as a female. This is a really complicated issue.

Some of things that need to be considered are how long that person was in pensionable service, whether that pre-dates or post-dates 1990, that important date that we have in terms of the necessity of equalising sex benefits for pension scheme purposes. It might be relevant to look at whether HRMC has updated what's known as its guaranteed minimum pension or GMP record. What I also think is really important is to make sure that the pensions team are lined up with the HR team at the employer because they may have thoughts or views on how the trans individual should be treated. Also within the pensions team there I think needs to be consistency in terms of the treatment of trans people wherever possible.

Siobhan: OK so it's clear from what you're saying really you need to consider a lot of different factors and no one size fits all, there's no such simple solution to all of this and each case needs to be carefully considered. But how then can an employer be confident when making calculations?

Gender re-assignment and how employers calculate pension entitlement

Liz: Well I think it is really difficult for employers because particularly in the pensions aspects many areas of the law are still untested. We are starting to get a few cases through in relation to the treatment of trans employees in the workplace more generally but not really so much in relation to pensions.

I think it's a balancing exercise, thinking about the strict legal requirements from a pensions perspective but also, as I mentioned, thinking about the organisations wider policy, thinking about what the HR teams approach would be and also thinking about where the risk of claims might lie.

One thing I haven't mentioned is that there is a requirement under the Equality Act for trustees and managers of pension schemes to apply the equal treatment provisions of the Equality Act to a pension scheme and to amend that scheme where it isn't already doing so. So that's definitely something that we've seen in practice that trustees might go further than, certainly the rules of the scheme say and possibly further than the strict legal requirements, because they might conclude that that's considered to be the right thing to do having worked with the employer to reach that decision. But very much as you say, there's no one size fits all at the moment in relation to that.

Siobhan: Thank you very much Liz for those insights and also tips on what's becoming a very topical issue and very complex issue for both employers and for individuals to navigate successfully. So thank you for joining us today and if you do have any questions in this area, please feel free to contact Liz.

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