Wednesday, 7 September 2016

Working With Transgender Employees: The HR Basics (UK)

Whenever I speak to employers and HR professionals I always seem to hear the same thing: "I wouldn't know how to act around a trans person in the workplace because I've never worked with one; what happens if a colleague tells me they wish to transition?...I'm not prepared ?" From the sidelines it can look like a daunting HR challenge. You don't know how colleagues might react to a trans "coming out" story, especially if they happen to be the first person going on this journey in the company's history. Pre trans employees have also heard the horror stories of trans people being openly harassed and abused in the workplace. The figures out there are startling; for example, when the UK Government announced its long awaited Transgender Action Plan, in 2011, it was stated that 88% of transgender employees experience discrimination and harassment in the workplace. It is clearly unacceptable that so many trans employees are experiencing unsavory behaviour just because they have decided to make legal changes to their gender identity and be open about it. HR professionals need to take a reasoned compassionate approach to dealing with trans employees before, during and after the transition process. I try and outline the basics of such an inclusive approach to inform and educate potential trans employees as well as line management and HR professions below:

Legislation relating to transgender employees/ gender reassignment surgery (a recap):
  • Equality Act (2010):
    • Outlaws discrimination in employment and vocational training on the grounds of gender reassignment (as a protected characteristic).
    • Trans people are referred to in law as transsexual as opposed to transgender. A transsexual is "a person who has proposed to undergo, is undergoing or has undergone gender reassignment surgery". It is advisable not to refer to trans people as transsexual except within the confines of the law as it is considered by the LGBTQIA community as an outdated term.
    • Protects : actual and prospective employees, former employees, apprentices, contract workers and people seeking or undertaking vocational training. Some self-employed people are also covered.
    • There is no legal requirement for an employee to tell their employer about their gender reassignment status, but it is unusual for people to undergo a level of social transition within their employment without notifying their employer. This does not mean you can force them to disclose their status.
    • It is unlawful for employees/customers/line management to refuse to work with an employee on the basis of their gender reassignment, even if they refuse on grounds of religious belief.
    • Types of unlawful discrimination include:
      • Direct - Explicitly stating someone cannot be transsexual/transgender to perform their job role within a company.= Direct Discrimination
        • Thinking someone is transsexual without any evidence/assertion from the individual concerned = Direct discrimination by perception (ACAS)
        • Telling someone they are wrong to work with transsexual/transgender employee = Direct discrimination by association (ACAS)
      • Indirect- Where an employer/HR department creates a workplace rule, practice or procedure that applies to everyone but particularly disadvantages those who wish to go through/ are going through/ have been through gender reassignment surgery. ACAS states an example would be if all employees had to disclose whether they have undergone gender reassignment (which is unlawful anyways).
      • Harassment - Unwanted conduct which leads to violation of a transsexual/transgender person's dignity or creates a degrading, humiliating or offensive environment because of their gender reassignment status. For example, sexual harassment of a trans employee is unlawful under the EA.
      • Victimisation- An employer/HR professional cannot discriminate against a transsexual/transgender person for using the provisions of the legislation to protect themselves. Equally someone who has helped a trans person to defend themselves using the Act provisions cannot be victimised.
  • Exceptions to the Equality Act:
    • Occupation requirement for the employee not to be transsexual/transgender: this might be enacted if a social worker had to be male because the client involved had suffered abuse/violence from a trans perpetrator.
    • Organisation may indirectly discriminate if that discrimination is a proportionate way to achieve a legitimate aim (will be very hard to prove in law!)
  • Gender Reassignment Act (2004):
    • Allows transsexuals to change their gender legally through obtaining a Gender Recognition Certificate (GRC).
    • It is not necessary for a trans person to gain a GRC to be protected under the EA.
    • Once a GRC is issued however, a trans person is considered legally to be his/her required gender which allows them to:
      • acquire a substitute birth certificate which recognises their gender change,
      • marry in the new gender or form a Civil Partnership with someone of the same gender as allowed under the Civil Partnership Act,
      • retire and receive a pension at an age that is appropriate to their acquired gender (that means reviewing changes to pensions by the Payroll team to ensure accuracy).
    • HR staff can only identify a person's trans status if you have been given permission to do so. "Outing" a trans person is considered direct discrimination under the EA.
    • Disclosure of a person's GRC is a criminal act  and is subject to a fine.

The process of "coming out" as trans at work:
  1. Employee informs line management of their wish to transition.
  2. Line manager informs HR department of employee's wish to transition.
  3. HR facilitates discussion with line management and employee, draws up Memorandum of Understanding. (See below).
  4. Line manager manages any absence that may result from the transitioning process, including unpaid sick leave. Informs HR department of any discrepancies so they can follow up.
  5. HR finds out when the employee is due to transition and how- for example if they are going to dress according to their expressed gender or changing their name.
  6. On the day of transition, HR checks with line management to ensure they are fully prepared, including informing all members of the department/company of the nature of the employee's transition. Reiterate Equality and Diversity policies and consequences of breaching those policies and that employees can refer back to these documents at any time.
  7. Line management makes sure email addresses are updated, workload has been agreed, monitoring/mentoring in place to help the transition happen smoothly at work.
  8. If there is an issue that is raised by the trans employee, line management and HR must make sure that issue has been fully investigated in accordance with Equality and Diversity policies and disciplinary procedures.
  9. If a trans employee wants to leave the organisation, HR must ensure the reference given is fair and complies with legislation (i.e. doesn't blame quality of work on the employee going through gender reassignment surgery, for example). Keep all documentation relating to trans an employee according to guidelines in case of a discrimination case being brought against the organisation on grounds of gender reassignment.
  10. If a trans employee wishes to change jobs within the organisation during their transition process on a temporary/permanent full or part time basis (between hormone therapy and gender reassignment surgery), line managers and HR professionals must be as helpful as possible in facilitating this; so if a role is mainly customer facing but they wish to do more backroom administration and there is enough work hours available to do this, it should happen. Make sure the trans employee is aware of changes to their hours/pay/working conditions if applicable and get them to sign an updated contract to state they consent to the changes made.
A compassionate HR approach:
  • Treat trans employees with respect, dignity and compassion. All employees within the organisation must demonstrate a positive approach to dealing with trans customers, both internal (fellow colleagues from other departments) and external. Make sure your HR department creates an Equality and Diversity policy that refers to gender reassignment/ identity as specified under the Equality Act (2010).
  • Consider creating an individual Memorandum of Understanding between line management, the trans employee concerned and a HR department member. Essentially a Memorandum of Understanding is an agreement between an employer and employee which summarises discussions about how the employer or employee might take certain actions, including:
    • time off from work to attend Gender Identity Clinics (GICs), GP surgery appointments or when going through a major operation -e.g. breast enhancement.
    • communication between different stakeholders within the organisation, including colleagues, management, customers, Govt. officials etc.
    • equipment changes - e.g. organising a new name badge, changing email addresses, scheduling photography sessions etc.
    • Allowing for dress code change
    • Use of toilet/bathroom facilities.
    • Any specific issues affecting the individual trans employee or employer.
  • The memorandum should be signed by the line manager, HR manager and employee and witnessed by a HR team member. It should be available to be accessed in case of updating and copies distributed to line management and the trans employee for them to keep hold of.
  • Data Protection Act (1998) record keeping wise, it is important to remember that a person's gender status and transition history is considered confidential and must not be disclosed without expressed permission (which should be given in writing). When a trans employee obtains a Gender Recognition Certificate, personnel records must be updated to reflect their expressed gender, unless they relate to pension/insurance details. Old details must be stored confidentially and according to the principles outlined in the DPA.
  • When arranging social events, such as Christmas parties, meal nights out or team building days, consideration must be shown for trans employees. For example, a trans man should not be shunned for deciding not to attend a shopping trip that's only been organised for female employees and a trans woman should not be expected to dress in black tie to attend a ball just because they haven't yet fully transitioned. Care must be taken by HR staff to explain the situation to all employees involved with the social event as to why a trans person may or may not choose to attend so that they do not assume it's not a case of showing an unwillingness to support the team.
  • If an employee discloses to you that they have been diagnosed with gender dysphoria and the condition has a substantial and long term adverse impact on their ability to carry out daily activities, they may also be protected under the Equality Act 2010 protected characteristic of disability. This means reasonable adjustments will have to be considered to ensure the company cannot be accused of discrimination on this basis. However it is appropriate to ask for medical information including the diagnosis letter from the GIC.
  • HR professionals must remember that it is unlawful to instruct someone to discriminate against a trans person on you or your firm's behalf; for example you cannot ask an agency you work with to reject a candidate on the basis of them being trans.
  • Dress code should be negotiable; trans employees should be able to wear clothing associated with their gender choice ASAP. HR professionals and line management must be aware that the employee may have a definite view on what they wish to wear and they should be allowed to wear what they want provided it falls into accepted  practice- e.g. if a trans woman wants to wear jewellery you should allow them to do this provided it isn't against Health and Safety practices (if a trans woman is becoming a nurse then it is acceptable to insist on them wearing stud earrings and a plain gold band because this reduces the possibility of infection and you would say the same to any female nurse working in a hospital, so it is not unlawful.)
  • Trans people usually express a binary gender preference when they refer to their gender identity- they want to be known as male or female rather than being trans. So it is generally advised that during appraisal/monitoring sessions, HR professionals avoid reference to gender categorisation and any links either assumed, perceived or given to their sexual orientation.
Why you SHOULD care about trans employees as a HR Professional:
Most HR professionals who study with the Chartered Institute of Personnel and Development (CIPD) will be familiar with the need to demonstrate a positive approach as defined under the Behaviours linked to the CIPD Profession Map as created by CIPD to guide HR professionals through their career. You can access the page here:

As you can see, there are a number of behaviour buzz words that indicate why HR professionals should care about treating trans employees with respect, dignity and compassion:
  • HR professionals should have the "courage to challenge" those who are wishing to discriminate against trans employees within the business. This includes using facts to challenge ideology that may be espoused by senior management- e.g. that "transmen cannot be men if they still have periods or don't have a penis" or "trans women can't use the female bathroom because they still haven't lobbed off their dick."
  • HR professionals must be "curious" to learn more about trans issues; they should ask appropriate questions and show interest in trans employees as individuals rather than as a homogenous grouping. HR professionals should be inquisitive enough to carry out their own research and perhaps expand their knowledge to include finding out about all gender differences that aren't binary-based too. If HR professionals do this research, it may make it easier to create Equality and Diversity policies that truly protect trans employees and it may be easier to inform/educate all employees within the business about trans issues so they do not feel uncomfortable speaking to trans employees. This may even lead to better customer service standards as customer facing staff may find it easier to deal with trans/non-binary customers.
  • Perhaps most importantly of all, HR professionals must be "role models" and be perceived as beyond reproach on all Equality and Diversity based issues. Be "personally credible" and authentic by challenging your own biases. If you don't agree with the notion of "transgender", make sure you put those feelings to one side and treat your trans employee with respect, dignity and compassion. They are still human beings. They can still function enough to carry out their previous job. Treat them in the same way as you would have done before but be mindful of pronoun preferences, dress codes etc.
It's not rocket science to equip HR professionals, line managers, colleagues and customers to be able to deal with trans employees, whether the company is in the public, private or third sector. Provided you are at the forefront of acceptance and inclusion and are prepared to be curious enough to learn more about trans issues whilst treating the employee concerned as an individual, you'll be on the right track. So be mindful of your own approach, be prepared to adapt but most importantly, be compassionate.