Awareness of issues around transgender and non-binary people is increasing. It is estimated that about 1% of the British population are gender nonconforming to some degree, and the number of people seeking treatment is growing every year.
Many employers will not have policies in place to help them support trans or non-binary staff. This note helps to explain the key issues to consider if a member of staff indicates that they are transgender or identify as non-binary.
What do the terms transgender and non-binary mean?
Non-binary gender is a term used to describe all people who do not identify themselves as being either male or female (i.e. within the gender-binary). Non-binary people fall within the wider definition of transgender which denotes people whose sense of personal identity and gender does not correspond with their birth sex.
Transgender staff may be protected from discrimination even if they have not started (or do not intend to start) medical treatment to change their gender identity
A person will be protected against discrimination under the Equality Act 2010 if he or she is proposing to undergo, is undergoing or has undergone a process to change their gender identity. The process does not necessarily have to involve medical intervention (commonly referred to as a sex change) and individuals are protected if they have begun to live their lives in a way to match their gender identity. For example, a woman who decides to live as a man without undergoing any medical procedures will be protected.
However, an individual who does not identify themselves as being either male or female will more than likely not be protected under the Equality Act unless they are perceived to be transgender.
You must keep details of an employee’s birth sex confidential
If you employ an individual who has already transitioned, most of your staff and managers will be unaware of their birth gender identity. You must keep this information confidential and take steps to ensure that any records which refer to their gender identity at birth are retained in a safe place and are only accessible by specified members of staff.
Any information relating to an individual's gender history will constitute sensitive data under the Data Protection Act 1988 and can only be processed for limited specified reasons.
Also, it is a criminal offence for any member of staff who has acquired protected information regarding an individual's gender identity to disclose that information to any other person. This applies where they obtained the information in an official capacity (such as a member of your HR team or as their line manager).
The information that you hold on file must reflect the individual’s current name and gender
Any material that you need to retain that is related to the person’s trans status, such as records of absence for medical assistance, birth certificate and documentation of name change, should be placed in a sealed envelope and attached to a new file with instructions such as, ‘Confidential: personnel manager only’. The personnel manager should only allow staff to view the information if they require it to perform their specific duties and with the permission of the person concerned.
You should also make sure that any changes to an individual’s name and gender are reflected in your electronic systems and databases to prevent staff being inadvertently “outed” due to old data references.
If you have a non-binary member of staff, it is good practice to ask how they wish to be referred. It is possible to use gender neutral terminology in written records such as Mx (instead of Mr, Mrs or Ms) and using their name rather than the shorthand he/she.
Transgender and non-binary staff should be able to choose the toilet facilities they wish to use
If your organisation has single sex facilities, you should allow a transgender member of staff who has started to live in their acquired gender role to use the facilities appropriate to that gender. Non-binary staff should be able to choose the toilet facilities they wish to use.
This can be a particularly contentious issue and must be managed appropriately and sensitively. It is likely that, with the trans employee’s consent, you will need to raise awareness of the issue. Other members of staff should be aware that objecting to a trans colleague selecting their toilet facilities will be considered to be unreasonable and potentially discriminatory.
Appropriate action should be taken against any member of staff harassing a trans or non-binary colleague, in accordance with your equal opportunity or diversity policy.
Transgender staff should be given reasonable time off to prepare for and undertake reassignment surgery
You should not treat any member of staff who requires time off to undertake gender reassignment less favourably than any other member of staff wishing to take time off for medical or physiological reasons.
There is no minimum or maximum time which must be allowed for absence for treatment, but it is good practice for employers to discuss with transsexual staff how much time they will need in relation to the gender reassignment process, and accommodate those needs in accordance with their normal practice and procedures.
Adopt neutral language wherever possible
It is good practice to avoid having binary – male/female as the choice in job applications or in diversity questionnaires.
Published: 7 November 2017
Employment Law Update - October 2017
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