Help set the agenda on transgender
With Facebook noting 51 genders, employment law must keep up with public opinion, says Amanda Jones
The laws around gender reassignment are developing, with both Westminster and the Scottish Government considering ways to offer improved protection against workplace discrimination. Some companies already go beyond legal requirements in their treatment of transgender employees and customers, but others need to be mindful that their policies are aligned with public opinion.
The treatment of people who do not fit traditional gender roles looks set to receive a good deal of attention in the coming months: the Scottish Government has indicated that it would consult on the law in this area by summer 2017 to ensure Scotland is adopting international best practice. Firms north of the Border, therefore, face a strong incentive to ensure their practices are as inclusive as possible.
The UK Government launched an inquiry into protection afforded to transsexuals before the recent general election, and various recommendations were made, including the “non-gendering” of official records. The Gender Identity (Protected Characteristics) Bill was introduced, although its progress was put on hold when Parliament was dissolved ahead of the election.
The issue has reached the debating chambers of Westminster and Holyrood via a wider change in popular perceptions and attitudes. In particular, the laws are being considered in the context of an ongoing discussion about the extent to which gender can be said to be binary or something different. For instance, Facebook now offers 51 different gender options.
Many UK companies are also showing themselves to be flexible on this issue, and mindful of the needs of customers. HSBC recently introduced ten gender neutral titles for its customers to use. HSBC has also invested in training for staff to ensure these improvements happen. Its actions, which followed advice from the bank’s internal LGBT employee network on ways to improve the service to the Transgender community, followed Metro Bank’s move last year to allow “non–binary” customers and staff to identify as Mx when giving their title.
Meanwhile in the US, President Donald Trump has made comments, which might suggest that protection will be rolled back in many areas for those in the LGBT community. But the position is quite different at state level, and equally, the practice of many companies reflects a change in approach. The Corporate Equality Index assessed Fortune 500 companies for Lgbt-inclusive policies and found that, of the 887 companies analysed, 93 per cent had equal opportunities policies which included gender identity. Furthermore, 73 per cent provided transgender-inclusive healthcare policies.
Companies are acting as the concept of gender has become controversial in itself, and clearly not everyone has the same view on the subject. The issue hit the headlines recently when Dame Jenni Murray, the veteran BBC Radio 4’s Women’s Hour presenter, was apparently reprimanded by the BBC for comments in an article which suggested that men who become women through gender reassignment grew up with male privileges and, therefore, can- not have experiences shared by “real” women. While these are not the kind of controversies many companies will want to be involved in, the fundamental issue for employers is to ensure all staff enjoy an environment in which they can thrive and feel comfortable. While gender reassignment is already a protected characteristic in the Equality Act 2010, the current law offers a relatively narrow definition of gender reassignment.
Currently, it refers only to those undergoing, intending to undergo,
or having undergone gender reassignment. That process will involve someone living as a man or woman then transitioning to living as a member of the opposite sex. While the legislation has provided some challenges to employers, few cases have been reported. However, the potential for harassment of someone who is in the process of transitioning, or has transitioned, is something which should be firmly in the mind of employers who seek to support a member of staff through this process. While the legal consequences of not keeping up with developments may not be significant for employers at present, there are strong reasons why companies should get ahead of the forthcoming legal changes and ensure their equality policies and statements and, in particular, harassment policies are aligned with public opinion, which has progressed greatly in its approach to gender in recent years. Amanda Jones is a partner and head of employment, pensions and immigration with Maclay Murray & Spens LLP.