The Government's consultation on reforming the Gender Recognition Act closed on Monday.  We understand that 53,000 responses have been submitted. 

Shah Qureshi and Natalie Taylor discuss what the consultation means for employers and what they can do to assist trans employees in the workplace.

Background

The Gender Recognition Act was a ground breaking piece of legislation when it came into force in 2004. It finally enabled trans people to receive legal recognition of their acquired gender through a process set out in the GRA. 

Whilst this was an important and long awaited step to secure trans equality, the process set out in the GRA has numerous requirements and the process to legally transition from man to woman or from woman to man is bureaucratic, strenuous, intrusive and expensive. As a result of the complicated process, only 4,910 people have legally changed their gender since the GRA came into force.  It is clear the process is outdated and reform was necessary.

Government consultation

Some recommendations were made to the government before the consultation deadline. Stonewall Scotland welcomed the consultation and agreed that applicants for legal gender recognition should no longer be required to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. They do, however, support the idea of applicants providing a statutory declaration to confirm their intention to live in their acquired gender until death. 

The Employment Lawyers Association “ELA” provided its response to the consultation. Shah Qureshi, head of the Irwin Mitchell Employment and Professional Discipline team in London, and a member of the ELA working party, has summarised the group’s findings as follows:

“The ELA working party has identified some areas of the GRA which it believes require reform. For example, the GRA makes it a criminal offence for a person who has acquired information about a person who made an application under the GRA to disclose the information to any other person. This is a blanket offence and does not require a Mens Rea element. This consultation is therefore an important step forward to improve the current legislation and bring the GRA in line with today’s society, both for trans people and also for those working with or assisting trans people on a daily basis.”

The consultation closed on 19 October 2018 and the government is then expected to respond to the outcome of the consultation.

Will the Equality Act be reformed?

Whilst the consultation to reform the GRA has been generally welcomed, there has also been demand for a review into the deficiencies to protect the trans community within the Equality Act 2010 (“EA”). In particular, the narrow definition of gender reassignment, one of the nine protected characteristics  has been criticised by charities and organisations. 

Under the EA, it is unlawful to discriminate, either directly or indirectly, harass or victimise anyone who is undergoing gender reassignment. The protected characteristic of gender reassignment only applies to people who are “proposing to undergo, are undergoing or have 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”.

Technically, this only covers transsexuals, but excludes other trans people who have not sought medical assistance to transition from one sex to another. It also excludes those who are bi-gender, agender, have no gender identity or those whose gender identity is non-binary. 

The Equality and Human Rights Commission “the Commission” has recommended that the terminology in the EA should be updated to ensure full equality and protection for all trans people, and not only those covered by the legal definition - something the ELA support.

According to statistics published by Stonewall, 42% of trans people not living permanently in their preferred gender role feel that they are prevented from doing so because they fear it might threaten their employment status. This is worryingly high, but not surprising. There is still too much stigma attached and the barriers need to be broken down. It is hoped that enhanced legal protection in the EA will, over time, improve these worrying statistics. Until then, it is up to employers to take proactive steps to provide a safe and inclusive workplace for its trans employees.

What can employers do to support trans employees?

Update your policies

Even though not all trans employees are legally protected under the EA and are able (or willing) to go through the lengthy and time consuming gender reassignment process, employers can make sure that their policies are inclusive. 

Employers can review their equal opportunity and bullying and harassment policies to ensure that all employees, irrespective of their gender identity, are protected, treated fairly and respected at work. Creating a positive and inclusive working environment will promote productivity and collaboration within teams.  

... and then implement them 

It is not enough to simply change workplace policies - employers must implement and enforce them if they are going to drive change. This means they should discipline any member of staff who bullies or harasses another member of staff because of their gender identity. 

Respect confidentiality

Employers have a positive duty to prevent workplace harassment for employees who have a protected characteristic. Gender reassignment and sexual orientation are two examples of the nine protected characteristics under the EA.  Tribunals have condemned employers who fail to safeguard the confidentiality of anyone who identifies as transgender. 

To avoid this, employers should put in place adequate systems to safeguard confidential information and agree a plan with the trans employee to avoid accidentally “outing” them against their will.  

Raise awareness 

Many employers are now starting to make changes which go beyond their minimum legal obligations to show support for transgender employees. For example, setting up equality groups and committees who organise events and raise awareness during key events throughout the year can demonstrate an employer’s support and make trans employees feel more comfortable at work. There are many different events and celebratory days throughout the year, such as Pride, National Inclusion Week, National Coming Out Day, International Transgender Day of Visibility etc. There are many different ways in which employers can get involved and show their support. 

By making the workplace a more inclusive and safe place to work, companies are more likely to recruit and retain talent and also increase productivity across the firm.

Need more information?

Please contact Shah Qureshi by email: shah.qureshi@irwinmitchell.com or by phone: 44 (0)207 400 8761.