Continuing the series on protected characteristics under the Equality Act 2010 we focus on gender reassignment and the need for employers to understand the legal protections and the potential consequences of failing to comply with them. 

What is gender reassignment?

A somewhat misunderstood protected characteristic, gender reassignment protects those who are either proposing to undergo, are undergoing or have undergone a process designed to change their sex. No medical treatment or surgery is necessary for an individual to benefit from protection against discrimination due to gender reassignment, but they have to make a conscious decision to commit to a process of change and notify their employer of that decision. 

Following a case in the Employment Tribunal in 2020, this characteristic was held to include not only transgender individuals but also non-binary and gender-fluid people, closing a gap in discrimination protection for those who do not identify as either male or female and those whose identity fluctuates at different points in time.

Common issues faced by employers

How do you foster an inclusive environment?

As exploring gender identity becomes more common and a focus on DEI (Diversity, Equity and Inclusion) is more widespread, employers can struggle to build a culture of respect in the workplace if there is a lack of understanding or knowledge at play. Raising awareness through knowledge sharing and training can be a powerful tool to involve everyone in learning about transgender and gender non-conforming experiences. Something as easy as encouraging employees to put their preferred pronouns in their email signature alongside educating employees around terminology can make everyone feel included. 

Professor Binna Kandola OBE explains there are things employers can do to enable a discussion to take place between people of different views in such a way that everyone feels they have been listened to. First of all, he says it is important that a discussion takes place on how the conversation should be handled. The rules for the discussion need to be established and agreed by everyone before talking about the issues themselves. Secondly, people need understand that it is a conversation and they have to allow other people to talk and to be listened to. Professor Kandola says “One expression that I like is that you should talk as if you’re right, but listen as if you’re wrong. This creates the expectation that people should approach this with the confidence to speak up, but with the openness to be able to listen to alternative positions”. Thirdly, he goes on to say that given there will be a variety of opinions in the room people should try to express their views in a way that doesn’t cause unnecessary offence. There may well be disagreement, but careful choice of words will mean the others won’t feel insulted or undervalued.

Confidentiality

Issues can arise for employers where confidential information is inadvertently disclosed which relates to the status of those who are transgender or gender non-conforming. As someone’s gender identity is sensitive medical information, it should be kept confidential in the same way any other medical information would be. Protecting individuals’ privacy helps to foster an inclusive environment and ensure everyone feels safe at work. A Trans Inclusion policy can help set out to managers how to process sensitive medical information and prevent individuals from having information relating to their medical history revealed inappropriately.

How do you balance competing rights?

The protection of those with the characteristic of gender reassignment has to be balanced against the protected rights of others, which can sometimes conflict. The well-known case of Forstater v CGD Europe established that the claimant’s gender-critical belief (that biological sex is not changeable and trans women are men) was held to be a philosophical belief worthy of protection. As both gender reassignment and gender critical beliefs are protected, it can be difficult for employers to reconcile these competing rights and to know what the best course of action is. Often it comes down to the way in which a view is expressed: if it is communicated in a manner that is conducive to healthy debate, and not in a way that is bullying or harassing to the individual, then the view is likely to be afforded the same protection as the competing right. 

The recent high-profile case of Roz Adams v Edinburgh Rape Crisis Centre demonstrates the tension between competing rights well. Ms Adams raised concerns about the Centre’s approach to gender identity following a request by a service user for information on a staff member’s biological sex. She was subsequently investigated for transphobic views in breach of the Centre’s equality and diversity and trans-inclusion policies, which led to a disciplinary hearing for charges of misconduct and gross misconduct. The Centre ultimately upheld two of the charges but did not issue any sanction. Ms Adams subsequently resigned and raised a claim for constructive unfair dismissal, discrimination and harassment on the ground that her gender critical views formed part of her philosophical beliefs, which the Tribunal upheld. They noted that Ms Adams had been extremely sensitive of the rights of others and their different points of view in her actions, and so the Centre had acted entirely disproportionately in subjecting her to a disciplinary process. 

This case highlights the risk to employers in favouring the protection of one group of people with a protected characteristic over another, as opposed to carefully balancing competing rights and assessing whether parties have acted reasonably in the circumstances.

Why is this important?

Employers should be aware of issues relating to gender identity so that they can address any disagreements that arise. A report by CIPD from February 2021 found that 50% of conflicts experienced by trans workers in the workplace remained unresolved, which can be an undesirable position for both the individuals affected and the employer as tensions between colleagues remain and a breakdown in working relationships becomes more likely. This can be avoided by management swiftly addressing issues before they escalate, ensuring that any bullying, harassment or discrimination is dealt with appropriately and encouraging respectful communication and discussion at work. 

What can employers do to prevent discrimination and harassment?

In practice, the quality of an employer’s policies and training and how they deal with any grievances or disputes which arise will determine how effectively they can avoid potential discrimination. This can also be invaluable in helping instil a culture that allows for debate but not disrespect. In a case where an employee was found to have been discriminated against on the grounds of gender reassignment, the employment tribunal recommended the following actions for the employer:

• Implementing a written policy relating to best practice for new or existing staff who are transgender or gender non-conforming;
• Improving its training for managers relating to confidentiality for trans employees during recruitment; 
• Improving its diversity and inclusion and harassment policies by specifically referencing trans-related discrimination. 

With the Edinburgh Rape Crisis Centre case in mind, employers should be aware that there is no hierarchy of protected characteristics and so a thoughtful balancing exercise is often needed where competing rights are at play. Training managers and HR on how best to carry out investigation, grievance and disciplinary processes without bias is key to navigating potentially difficult conversations and disputes between employees and ensuring fair and balanced decision making.