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a:gender

Meeting the gender duty for transsexual staff
Guidance for GB public authorities
EOC Commission

[edited abstract]

MEETING THE GENDER DUTY FOR TRANSSEXUAL STAFF

Introduction

The gender equality duty means that from April 2007 public authorities will be required to have due regard to the need to eliminate discrimination and harassment on grounds of gender reassignment in the fields of employment, vocational training (including further and higher education).

This guidance has been produced to help public sector managers to fulfil the requirements of this new duty. It is designed to be a toolkit to guide you in your implementation of the duty; it is not legally binding. The Gender Equality Code of Practice is the key document on how to meet the legal requirements of the Duty. A court or tribunal may draw an adverse inference that a breach of the law has occurred if a public authority has failed to follow relevant provisions under the Code. Since the duty applies initially only in the areas of employment and vocational training (including further and higher education) these are the areas covered by this guidance document.

The scope of the legal protection against discrimination and harassment on the grounds of gender reassignment will, however, be extended within the Sex Discrimination Act (by the Goods and Services Directive). From the date of implementation of the Directive public authorities will be under a duty to have due regard to the need to eliminate unlawful discrimination and harassment on grounds of gender reassignment in the provision of goods, facilities and services and in the disposal and management of premises .

This document will, therefore, be extended in due course to cover the provision of goods, facilities and services and disposal and management of premises in addition to employment and vocational training.

Summary of the law

See Summary of the law as it protects Transsexuals

Meeting the gender equality duty in employment
Outcomes to aim for

From April 2007 when the gender equality duty comes into force, public authorities will have a statutory duty to pay due regard to the need to eliminate discrimination and harassment of transsexual staff and potential staff and, in vocational training (including further and higher education), of transsexual trainees.

The following are suggested indicators of whether a public authority has been successful:

• Transsexual people feel supported and valued as employees/trainees.
• Transsexual employees, trainees and apprentices undergoing transition are retained as valued members of staff.
• Transsexual trainees undergoing transition on training courses complete the training.
• Barriers to the recruitment and retention of transsexual staff have been identified and removed.
• A clear and workable policy for dealing with harassment of transsexual staff/trainees.
• Support mechanisms to protect the health and welfare of transsexual people in the workplace, and in vocational training.
• There is evidence that the public authority promotes and maintains a culture of respect for the dignity of individuals and difference.
• There are appropriate protocols for management of sensitive and confidential information about a person's transsexual status.
• Practical matters related to transition such as access to changing and toilet facilities are resolved quickly and respectfully.

Due regard and transsexual people

Transsexual people are a small percentage of the population and so statistically, you may deal with transsexual staff or trainees very rarely. Despite the small numbers, however, public authorities are under a duty to have regard to the need to eliminate discrimination and harassment on the grounds of gender reassignment. Having due regard means that the weight given to the need to eliminate discrimination and harassment is proportionate to its relevance to a particular function.

Public authorities will need to take into account the seriousness or extent of the discrimination or harassment, even if the number of people affected is small. This would often be the case where, for example, transsexual people were affected, as the seriousness or extent of discrimination and harassment might be significant.

The following steps will assist public authorities to ensure that they have due regard in this area:

• Ensure that equal opportunities policies, employment policies and practices do not discriminate against transsexual people – especially in terms of dignity at work and harassment policies, recruitment and monitoring. Larger organisations may wish to develop specific policies on gender identity.
• Keep up-to-date on the current legislation in this area and where more information and advice is available.
• Provide training for staff on how the gender duty applies to transsexual people.
• Larger organisations may want to set up a support network for staff or trainees.
• Produce effective guidance for managers on dealing with the process of transition.

Revising policies and practices

Under the gender equality duty, existing equalities and other policies which refer to discrimination on the grounds of sex should be amended to ensure that they take into account the needs of trans people and do not discriminate against them.

Public authorities will need to ensure any employment policies and practice adequately cover transsexual employees, particularly those dealing with confidentiality, harassment, access to development (such as training, secondment, internal job vacancies and promotion), pensions, and other benefits in kind such as insurance.

It may be helpful, especially for larger organisations, to develop a specific policy on transsexual staff.

Keeping informed

Public authorities will find it helpful to develop sources of information and advice; there is a list of further sources of information at the end of this document.

a:gender is a Civil Service-wide trans support network > Home Office and a:gender

Training

Public authorities will need to consider providing specific training to ensure that all employees are aware of the gender equality duty, including the duty to eliminate discrimination and harassment on the grounds of gender reassignment, and how the duty impacts upon their jobs.

Training should be conducted in such a way so as to ensure that all staff are able to raise issues and concerns of their own, and it is paramount to ensure that they know what is expected of them. Training may be particularly important if any members of staff are transitioning.

When developing training programmes for staff, especially doing so in response to a member of staff or trainee transitioning, it is good practice to involve any transsexual staff/trainees in the planning and design phases, should they chose to be involved. Keep in mind that some transsexual staff/trainees may chose not to be publicly identified as such; when consulting, confidentiality is paramount, until they indicate that they are comfortable being “out”.

Particular issues in employment

Recruitment

There is no obligation for a trans person to disclose their status as a condition of employment. In particular it should not be expected that applicants and interviewees will want to disclose their trans status – some people consider it a very private matter and may have experienced prejudice and harassment in the past. Questioning an applicant about their transgender status may actually amount to unlawful discrimination.

The interviewee may choose to disclose their trans status, however, especially if relevant references or publications that they have published are listed under a different name. In the event that an individual does disclose, the issue should be dealt with the same sensitivity as any other personal disclosure.

If you use recruitment agencies you should also inform them of the requirements of the gender duty and of the authority's policies and procedures. Further, public authorities will need to have due regard to the need to eliminate discrimination and harassment in its contractual arrangements with its recruitment agencies.

Genuine Occupational Qualifications

A Genuine Occupational Qualification (GOQ) exists when the specific nature of a job, or duties attached to it require it to be undertaken by members of one sex. The SDA, in very limited circumstances, makes discrimination lawful in, for example, recruitment, training, promotion and transfer in a job where a GOQ is applicable.

The SDA allows for two kinds of GOQ:
• On the basis of sex (the job requires either a man or a woman). For more guidance on GOQs of this nature, please consult the Gender Equality Duty Code of Practice.
• On the basis of transition (where an individual is intending to undergo, is undergoing or has undergone gender reassignment but has not obtained a GRC). For more guidance on GOQs of this nature, please consult "Gender Reassignment – a Guide for Employers", available from the Women and Equality Unit (WEU) or the EOC guide "Transgender at Work: your rights as an employee".

If a public authority is considering applying a GOQ based on sex, then they should keep in mind that it not be available when filling a vacancy if the authority already has sufficient male (or female) employees who are capable of fulfilling the duties in question, whom it would be reasonable to employ on those duties, to meet their requirements without undue inconvenience. It is also important to remember that these GOQs may only be applied on a post-by-post basis and not on a blanket basis

If a public authority is considering applying a GOQ when filling a vacancy, denying opportunities for promotion, transfer or training to specified posts or dismissing the employee or otherwise not allowing them to continue in such employment, based on the employee's transitioning, before it could do so, it would have to consider its staffing situation overall in order for the GOQ to be lawful. If there are already sufficient male (or female) employees who are capable of fulfilling the duties in question and whom it would be reasonable to employ on those duties to meet its requirements without undue inconvenience, a GOQ could not be applied to filling a vacancy for such a post. These GOQs may also only be applied on a post-by-post basis and not on a blanket basis

Once a person has obtained a full GRC they are deemed in law to be of the gender to which they have transitioned and must be treated in that gender with respect to jobs where a GOQ applies.

Record keeping and confidentiality

If an employee discloses their status as a transsexual person or they transition during their employment, public authorities will need to identify the point at which the employee's new gender is changed in personnel records, and public references e.g. web directories, security passes etc. The EOC recommends that public authorities should agree at what point these changes are made with the individual concerned.

Once a person has obtained a Gender Recognition Certificate it is recommended that public authorities replace all records with new details.

In specified circumstances the GRA prohibits disclosure of the fact that someone has applied for a GRC or disclosure of someone's gender prior to the acquisition of the GRC. Such disclosure constitutes a criminal offence liable to a fine.

Regardless of the legal status of the individual concerned, the EOC recommends that public authorities maintain confidentiality regarding their previous gender identity – including the provision of references for ex-employees. It is recommended that access to records regarding the change of status is restricted to a 'need to know' basis.

An employee may also choose to disclose information informally to their line manager, other colleagues etc in which case strict confidentiality should also be observed as it should for the disclosure of any other personal information.

Criminal Records Bureau

Criminal Records checks are a pre-requisite for a large range of public sector jobs. Conventional CRB application forms require details to be completed that would automatically reveal the birth sex of a trans applicant, for example, some mandatory details such as previous names would easily be spotted by prospective employers checking the applicant's form before sending it off to the bureau.

In response to the concerns of a number of trans organisations the CBR created a process specially for trans applicants, enabling them to leave such sensitive details off their application form provided they are sent straight away to a special secure address within the bureau. Trained CRB staff then join up the missing information so that the employer has no reason to see or know this aspect of the prospective recruit's medical background.
http://www.crb.gov.uk/default.aspx?page=2319

Transitioning

For public authority employers, and in particular, line managers, dealing with an existing employee who is transitioning can be the most difficult situation to arise in relation to gender reassignment.

Public authorities can get more information and advice on this both in the EOC guidance developed specifically for line managers (see resources) and from "Gender Reassignment – a Guide for Employers" available from the Women and Equality Unit (WEU). In all decisions, the EOC recommends that public authorities act in close engagement and agreement with the employee.

It is also important to remember that an individual's medical decision and transition process are highly personal – as an employer, public authorities will need to be kept informed of the transition process, but intimate and detailed medical questions should remain private. You should not question a transsexual person on their biology or anatomy, or about the method that they take to undergo transition.

Public authorities will need to consider the following issues:

• the expected point of change of social gender, including change of name and personal details and what amendments will be required to records and systems
• the expected timescale of medical and surgical procedures and what time off will be required. The EOC recommends that public authorities take reasonable steps to accommodate trans employees' requests for sick leave/leave for medical treatment. Public authorities may be able to agree periods of unpaid leave, where contractual and statutory sick leave is no longer available, or a change in working hours or patterns to help manage absence. At a minimum, sick leave policies/practices should not treat transsexual employees less favourably than they would treat a person absent due to illness or some other reason where it would be reasonable to allow a similar amount of time off work ; to do so, may amount to discrimination on the ground of gender reassignment. Also, individual rights under the Disability Discrimination Act must be considered where the individual has been diagnosed as having ‘gender dysphoria’ or ‘gender identity disorder’ and the condition is likely to last more than twelve months, has lasted for more than 12 months or will remain with the individual for the rest of their life.
• when colleagues and clients should be informed and whether any training or education will be needed – managing the response of other colleagues can be problematic and training can help to address this. The EOC recommends that the employee is involved in this decision and they are given the opportunity to contribute to the planning of training;
• flexibility in dress codes;
• resolution of any issue relating to the use of toilets and any other single sex facilities, such as changing rooms, by the transsexual person
• handling any harassment, hostile reaction or unwanted media interest.
• whether or not the employee wishes to stay in their current post or be redeployed, either for their own comfort or due to access to facilities. If redeployment does take place, it is imperative that it does not disadvantage the employee in terms of pay, conditions or promotion prospects or result from negative attitudes of colleagues or clients.
• discussing and agreeing reintegration and support strategy for the trans person.

Having an internal policy or guidelines on gender identity which is widely publicised amongst staff will help all employees to be clear on their responsibilities and should also give more confidence for staff who are preparing to transition to initiate discussions with their public authority employer.

Harassment

As an employer, you have a legal responsibility to ensure that any transsexual employee is protected from harassment in the workplace. Harassment on grounds of gender reassignment is prohibited in employment and vocational training (including further and higher education). Further, the Gender Equality Duty places an obligation on public authorities to have due regard to the need to eliminate harassment, including harassment on the grounds of gender reassignment. Public authorities will need to manage the reactions of colleagues and customers who may have little or no understanding of the issue particularly during transition.

The EOC has produced comprehensive guidance on how to deal with harassment when it does occur and steps you can take to prevent it occurring [available from www.eoc.org.uk]. These include:

• Have an effective and well communicated policy that covers gender identity
• Train all staff and managers on the policy and their responsibilities under it
• Make harassment of colleagues a disciplinary offence.
• Monitor your policy and its success regularly
• Develop clear procedures for investigating complaints
• Train staff involved in investigating complaints

Conclusion

This guidance is designed to assist you with fulfilling your obligations under the duty. It recommends good practice and illustrates different ways that you can use the GED to support transsexual staff and potential staff. It is not a comprehensive statement of the law, and does not replace the Code of Practice or the Equality Act. By taking the steps outlined in this guide you may be able to make positive progress towards treating all staff, regardless of their gender identity, with decency and respect and by so doing enable them to reach their full potential as employees.

page: trans :: transgenderduty.htm
updated: 28 Jun 07